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READINGS  ON 

AMERICAN  STATE 

GOVERNMENT 


EDITED  BY 

PAUL  S.  REINSCH 

PROFESSOR    OF    POLITICAL    SCIENCE    IN    THE    UNIVERSITY    OF    WISCONSIN 
AUTHOR    OF    "world     POLITICS,"    ''COLONIAL    GOVERNMENT," 
"AMERICAN    LEGISLATURES,"    "READINGS    IN    AMERI- 
CAN   FEDERAL    GOVERNMENT,"    ETC. 


GINN  AND   COMPANY 

BOSTON   .   NEW   YORK  •  CHICAGO    •   LONDON 

3  t>  4>  8  9 


Copyright,  1911 
By  PAUL   S.  REINSCH 


ALL    RIGHTS    RESERVED 


8.1.3 


Cbt   g  tl)tn«um   $rc0< 

(.INN   AND  tuMl'ANV  ■  I'KD- 
}'KII-roI<S  •  IiUST(jN  ■  U.S.A. 


.4 

'  '  PREFACE 

The  editor  offers  this  second  volume  of  readings  to  students 
eJ  and  to  the  pubUc  in  the  hope  that  it  may  help  to  make  more 
familiar  the  actual  working  of  our  state  governments.    It  is  mat- 
ter for  regret  that  there  is  no  such  source  of  information  as  the 
Congressional  Record  affords  in  matters  relating  to  the  national 
government.    So  much  of  the  real  activity  of  the  state  legislatures 
,  taking  place  in  the  comparative  seclusion  of  committee,  combined 
with  the  incomplete  nature  and  intent  of  the  current  press  reports, 
"I  forces  the  student  of  the  real  life  of  the  state  lawmaking  bodies  to 
rely  upon  the  agencies  which  are  coming  into  existence  to  remedy 
T\    this  defective  publicity  and  observation.    State  documents,  too,  are, 
^    in  the  main,  rather  statistical  and  local  in  character.  The  messages 
^   of  the  governors  are  frequently,  however,  quite  invaluable  sources, 
rs^    while  the  opinions  of  our  courts  and  the  conferences  of  the  bar 
•^    associations  are  a  seemingly  hitherto  unworked  mine.   To  the  field 
^    workers  in  the  study  of  actual  government  —  the  newspaper  re- 
^VV^orters  and  magazine  writers — the  public  and  students  owe  a  debt 
they  are  not  always  conscious  of. 

The  editor  desires  to  make  grateful  acknowledgment  to  the 
various  publishers  and  authors,  individually  recognized  in  the  text, 
who  have  generously  permitted  him  to  make  use  of  selections 
from  articles  or  works  published  or  written  by  them. 

The  editor  of  the  present  collection  desires  to  express  his  deep 
indebtedness  to  his  colleague  and  friend,  Mr.  William  L.  Bailey, 
for  his  invaluable  assistance  in  the  preparation  of  this  volume. 
Not  only  did  he  furnish  many  of  the  selections,  but  he  counseled 
with  respect  to  the  general  plan  of  the  book  ;  and,  finally,  the 
editor,  called  abroad  on  a  public  mission,  was  obliged  to  turn  over 
to  him  the  arduous  task  of  seeing  the  volume  through  the  press. 

PAUL  S.  REINSCH 


111 


CONTENTS 


I,  The  Governor  page 

W.  E.  Russell,  The  Power  of  the  Governor i 

William  Allen  White,  Folk  as  Governor lo 

Executive  Usurpation 14 

Governors  and  Legislatures 17 

Justice  Henderson  on  the  Pardoning  Power 19 

Governor  Folk,  The  Enforcement  of  Law 26 

Governor  Willson  on  Law  Enforcement  in  Kentucky     ...  28 

IL  The  Legislature 

Samuel  P.  Orth,  Our  State  Legislatures 41 

Ernest  L.  Bogart,  Financial  Procedure  in  Legislatures  ...  56 

James  Bryce  on  Methods  and  Conditions  of  Legislation      .      .  61 

Charles  McCarthy,  Legislative  Reference  Department    ...  63 

Methods  of  Legislation 74 

Governor  Russell  on  the  Lobby 79 

Governor  La  Follette  on  Lobbying 81 

Senator  Bourne  on  Popular  Government  in  Oregon  ....  84 
Margaret  A.  Schaffner,  The  Initiative,  the  Referendum,  and 

the  Recall 108 

Judge  Baldwin  on  the  Extended  Sphere  of  Legislative  Action  .  116 

Elihu  Root  on  Legislative  Apportionment 1 20 

Governor  McLean  on  Legislative  Apportionment 127 

George  W.  Alger,  The  Law  and  Industrial  Inequality    .     .     .  129 

III.  The  Judiciary 

William  L.  Carpenter,  Courts  of  Last  Resort 140 

H.  T.  Lummus,  The  Practical  Working  of  the  Appeal  System  .  1 50 

William  R.  Smith,  Politics  and  the  Judiciary 158 

Simon  Fleischmann,  Claims  against  the  State 168 

IV.  The  Criminal  Law 

William  H.  Taft  on  Delays  and  Defects  in  the  Enforcement 

of  Law 1 73 

James  W.  Garner,  Crime  and  Judicial  Inefficiency     .     .     .     .  181 

Julian  W.  Mack  on  the  Juvenile  Court 199 

E.  A.  Snively  on  the  Parole  Law  of  Illinois 207 

The  Pennsylvania  Constabulary 217 

V.  The  State  Administration 

F.  H.  White,  The  Growth  and  Future  of  State  Boards  and 
Commissions 222 

Thomas  Mott  Osborne,  The  Public  Service  Commissions  Law 

of  New  York 240 

V 


VI  AMERICAN   STATE  GOVERNMENT 

PAGE 

Governor  La  Follette  on  Railway  Regulation 252 

The  Supreme  Court  on  State  Conservation  of  Natural  Re- 
sources        262 

The  Maine  Supreme  Court  on  Natural  Resources  as  State 

Property 265 

Governor  Hughes  on  Conservation  in  New  York 271 

Henry  S.  Graves  on  Forestry  by  the  States 284 

S.  H.  Wolfe,  Present  Supervision  of  Life  Insurance,  its  Merits 

and  Defects 286 

T.  S.  Adams,  Separation  of  the  Sources  of  State  and  Local 

Revenues 293 

J.  A.  Fairlie,  State  Supervision  of  Local  Finance 301 

Governor  La  Follette,  Taxation  of  the  Property  of  Railway 

Corporations        310 

Henry  C.  Adams,  Tendencies  in  Railway  Taxation    .          .  318 

Governor  La  Follette  on  Protection  of  the  State  Treasury  .     .  325 

VL  Education 

,                   George  W.  Curtis,  Education  and  Local  Patriotism  .     .     .     .  328 

\J                    Jacob  Gould  Schurman  on  the  Government  of  State  Universities  33 1 

Workingmen  and  Higher  Education 336 

VH.  Prohibition 

Governor  Folk  on  the  Saloon  and  the  Law 338 

F.  C.  Iglehart,  The  Nation's  Antidrink  Crusade 342 

F.  C.  Iglehart,  Another  Year  of  Defeat  for  the  American  Saloon  357 

/     VIII.  Elections  and  Nominations 

Philip  Loring  Allen,  The  Multifarious  Australian  Ballot      .     .  364 

Richard  S.  Childs,  The  Short  Ballot 372 

Governor  La  Follette  on  Nominations  by  Direct  Vote  of  the 

I'cople 383 

/            Governor  La  Follette  on  Majority  Nominations 394 

Charles  K.  Lush,  An  Essential  Amendment  to  the  Primary  Law  399 

George  H.  Haynes,  Popular  Control  of  Senatorial  Elections    .  404 

How  the  People  are  using  their  New  Power  of  Nomination  .  414 

Senatorial  Deadlocks 421 

Governor  Folk  on  Bribery  Laws         428 

Governor  Garvin,  The  State  Boss 432 

IX.  Constitutional  Conventions 

J.  II.  Hamlin,  The  New  York  Constitutional  Convention   .     .  435 

J.  A.  Fairlie,  The  Michigan  Constitutional  Convention  .     .     .  438 

J.  Q.  Dcaley,  (General  Tendencies  in  State  Constitutions     .      .  443 

C.  A.  Beard,  The  Constitution  of  Oklahoma 450 

BIBLIOGRAPHICAL  NOTE 465 

INDEX 471 


READINGS  ON 
AMERICAN   STATE  GOVERNMENT 

I 

THE  GOVERNOR 

THE  POWER  OF  THE  GOVERNOR^ 

By  Governor  W.  E.  Russell 

[The  power  of  the  governor  in  the  New  England  states  has  been  affected 
by  historical  conditions.  The  early  period  from  which  the  constitutions  of  these 
states  date,  and  the  large  powers  reserved  to  the  assembly,  cause  the  position 
of  the  New  England  executive  to  be  comparatively  weak.  Also,  because  of  the 
complexity  of  conditions  consequent  upon  the  industrialization  of  the  New 
England  states,  the  commission  movement  has  been  stronger  there.  In  differ- 
ent parts  of  the  country  it  is  often  the  experience  of  a  strong  executive  to  find 
his  projects  weakened  by  legislative  opposition  or  indifference.  However,  on 
the  whole,  the  governor  as  head  of  the  administrative  departments  and  of  the 
state  government  has  a  growing  influence  over  legislative  action.] 

Gentlemeit  of  the  Senate  and  House  of  Representatives  : 

Profoundly  grateful  to  the  people  of  the  commonw^ealth  for  the  re- 
newed confidence  which  has  again  intrusted  me  with  important  public 
duties,  I  enter  upon  their  discharge  by  submitting  to  you  such  suggestions 
and  recommendations  as  seem  to  merit  your  consideration  and  action. 

This  privilege  of  addressing  the  legislature,  accorded  the  governor  by 
long-established  custom,  is  not,  in  my  judgment,  best  used  in  a  perfunc- 
tory statement  of  the  recommendations  of  the  various  departments  of 
the  commonwealth,  all  of  which  are  set  forth  fully  in  their  reports  to  you. 
I  believe  it  better  to  make  this  the  occasion  for  a  broader  treatment  of 
public  questions,  for  giving  expression  to  the  people's  wishes  and  wants, 
and  for  suggestion  to  the  legislature,  and  through  it  to  the  public,  of  any 
policy  or  reform  which  seems  to  the  governor  wise  and  necessary,  and 
for  which  he  is  ready  to  assume  responsibility.  Department  recommen- 
dations can  be  called  to  your  attention  in  a  later  message,  if  necessary, 

1  Address  to  the  Massachusetts  Legislature,  January,  1892. 

I 


2  AMERICAN  STATE  GOVERNMENT 

with  such  indorsement  or  criticism  as  they  suggest.  This  cause  separates 
more  clearly  the  views  of  the  executive  and  of  the  departments,  and  gives 
to  both  greater  emphasis  and  responsibility.  It  requires  the  chosen  rep- 
resentative of  the  people,  as  his  first  duty,  to  submit  to  you  their  opinion, 
indicated  by  their  votes,  upon  such  public  matters  within  your  jurisdiction 
as  demand  your  attention.  So  will  elections  mean  a  choice  between  prin- 
ciples and  measures  rather  than  between  men. 

The  close  dependence  of  the  people  upon  their  state  government,  the 
great  and  immediate  control  it  exercises  over  them  and  their  liberty,  prop- 
erty, and  welfare,  make  the  duty  imperative  of  keeping  that  government 
efficient  and  responsible  in  its  work,  and  of  adopting  any  changes  or 
reforms  necessary  to  this  end.  With  the  tendency  each  year  to  increase 
its  duties  and  to  multiply  its  subjects,  and  thus  to  enlarge  its  power  over 
public  and  individual  interests,  the  greater  is  the  necessity  that  this  power 
should  be  restrained  by  such  official  responsibility  as  will  keep  it  well 
within  the  control  of  the  people  and  make  every  administrative  officer 
answerable  to  them.  "  The  first  requisite  of  efficient  administration," 
says  an  experienced  writer,  "  is  power  with  responsibility  to  a  constituency 
which  can  readily  call  it  to  account."  Machinery  of  government  which 
worked  easily  and  well  when  its  duties  were  comparatively  few  and  simple 
may  be  too  cumbersome  to  meet  its  many  and  complicated  duties  of  later 
days,  and  entirely  inadequate  to  bring  the  government,  now  more  and 
more  felt  by  the  people,  within  their  control.  Faithful  and  efficient  serv- 
ice may  make  a  bad  system  work  well,  or  mitigate  its  lack  of  respon- 
sibility ;  but  sound  administration  cannot  permanently  be  had  under  such 
conditions,  nor  until  the  system  itself  is  changed  and  corrected. 

In  my  judgment  the  time  has  come  when  the  attention  of  the  legislature 
ought  to  be  directed  to  the  executive  branch  of  our  government,  to  the 
great  increase  of  its  duties,  the  lack  of  uniformity  or  system  in  the  organi- 
zation created  for  their  discharge,  and  its  entire  absence  of  responsibility, 
except  in  the  high  character  and  conscientious  service  of  officials  in  its 
various  departments.  My  criticism  is  not  of  officials,  but  of  a  system ; 
and  the  test  of  that  system  is  not  the  faithful  work  which  they  have  done, 
but  the  unfaithful  work  others  might  do  without  adequate  responsibility 
to  call  them  to  account.  If  danger  lurks  in  the  .system,  if  it  can  permit 
arbitrary  acts  without  control,  misconduct  without  correction,  or  official 
administration  without  responsibility,  it  is  wrong. 

A  year  ago  in  my  inaugural  address  I  briefly  considered  this  subject. 
The  experience  of  the  year  has  strengthened  my  conviction  upon  the  views 
and  recommendations  then  expressed.  As  the  subject  has  been  constantly 
before  the  people  in  the  meantime,  by  executive  action,  debate  in  the 
legislature,  and  di.scussion  through  the  press  and  in  the  last  political  cam- 
paign, and  the  people  may  fairly  be  considered  to  have  formed  and  ex- 
pressed their  opinion  ujjon  it,  I  deem  it  my  first  duty  to  urge  upon  you 
a  thorough  examination  of  our  methods  of  executive  and  administrative 


THE  GOVERNOR  3 

work,  and  the  adoption  of  such  changes  as  will  bring  into  it  complete 
responsibility  to  the  people,  and  will  simplify  machinery  at  present  com- 
plex, without  system  or  uniformity. 

A  brief  examination  of  the  gradual  but  large  growth  of  executive  work 
and  executive  offices  in  the  more  than  one  hundred  years  of  our  consti- 
tutional government  is  necessary  for  an  intelligent  consideration  of  this 
matter.  For  some  years  after  the  adoption  of  our  constitution  in  1780 
there  were  few  administrative  officers  to  be  appointed  or  supervised  by 
the  governor.  While  the  constitution  definitely  fixed  the  appointment 
and  tenure  of  judicial  and  militar}'  officers,  it  left  to  the  legislature  the 
power  "  to  provide  by  fixed  laws  for  the  naming  and  settling  all  civil 
officers  within  the  commonwealth,  the  election  and  constitution  of  whom 
are  not  in  this  form  of  government  otherwise  provided  for,  and  to  set 
forth  the  several  duties,  powers,  and  limits  of  the  several  civil  and  military 
officers  of  the  commonwealth."  It  was  not  then  foreseen,  nor  has  it  been 
at  any  time  since,  how  great  would  be  the  growth  of  executive  work,  and 
how  varied  and  intricate  the  subjects  of  public  and  private  interest  with 
which  it  would  deal.  Consequently,  neither  by  the  constitution  nor  by 
any  legislative  act  has  there  been  established  any  uniform  system ;  but, 
as  the  exigency  of  the  moment  demanded,  an  office  has  been  created, 
apparently  without  much  thought  of  its  relation  to  the  executive  machin- 
ery already  or  thereafter  to  be  established.  As  in  the  multiplicity  of  laws 
it  becomes  imperative  at  last  to  codify  and  systematize  them,  so  in  the 
multiplicity  of  offices  the  same  necessity  may  exist. 

The  growth  of  the  commonwealth,  the  creation  and  increase  of  her 
penal,  reformatory,  and  charitable  institutions  and  of  new  subjects  of 
public  supervision  or  control,  have  compelled  the  legislature,  under  the 
authority  conferred  upon  it,  to  establish  numerous  offices  and  departments 
as  the  necessar}'  machinery  for  the  administration  of  this  work.  Most  of 
these  are  of  comparatively  recent  date,  created  with  little  regard  to  uni- 
formity of  government  or  direct  responsibility.  There  are  to-day  in  the 
executive  department  of  the  commonwealth  over  three  hundred  officers, 
commissioners,  and  trustees,  not  including  clerks  and  other  subordinate 
officers,  participating  by  statute  authority  in  the  administration  of  our 
government.  There  are  over  twenty-five  state  commissions  (some, 
however,  not  purely  executive)  and  more  than  one  hundred  trustees 
of  public  institutions.  \Miether  this  number  can  be  reduced  by  aboli- 
tion or  consolidation  of  offices  has  been  considered  by  a  special  com- 
mittee of  the  last  legislature,  who  will  submit  to  you  the  result  of 
its  investigation. 

In  my  judgment  that  question  is  rather  one  of  detail  than  of  principle, 
and  by  no  means  as  important  as  the  question  of  uniformity  and  respon- 
sibility in  the  administration  of  these  public  trusts.  At  present  there  is 
neither.  The  tenure  of  some  commissioners  and  trustees  is  three  years ; 
of  others,  five ;  of  others,  seven ;  and  of  one  board,  eight.    This  tenure 


4  AMERICAN  STATE  GOVERNMENT 

is  fixed  by  law,  and  gives  the  occupant  a  right  to  hold  the  office  for  its 
full  term,  in  the  absence  of  express  statute  provision  for  removal.  In 
many  of  the  statutes  there  is  no  such  provision,  and  where  it  exists  there 
is  no  uniformity.  Members  of  four  commissions  and  the  medical  exam- 
iners can  be  removed  for  sufficient  cause  by  the  governor  with  the  con- 
sent of  the  council ;  members  of  eleven  commissions  can  be  removed 
with  or  without  cause  by  the  governor,  but  only  with  the  same  consent. 
Only  eight  officers,  outside  of  the  district  police,  can  be  removed  by  the 
governor  alone,  upon  his  own  responsibility.  That  is  the  extent  of  his 
effective  and  responsible  executive  control.  Five  boards  of  trustees  are 
removable  "  for  sufficient  cause,"  but  without  any  provision  as  to  who 
shall  exercise  this  power.  Of  the  remaining  administrative  boards  and 
officers  appointed  for  a  fixed  term,  including  the  boards  of  lunacy  and 
charity,  of  health,  of  education,  of  prisons,  the  state  members  of  the  board 
of  agriculture,  and  other  officers  holding  important  public  trusts,  there  is 
no  power  of  removal  in  anybody,  except  by  the  cumbrous  machinery  of 
impeachment.  More  than  one  hundred  and  twenty  important  executive 
officers  are  thus,  during  a  tenure  of  office  varying  from  three  to  eight 
years,  beyond  the  reach  and  control  of  any  executive  power.  All  of  these 
officers  perform  public  duties,  expend  public  money,  and  administer  pub- 
lic trusts.  In  some  way  they  should  be  made  responsible  to  the  people ; 
otherwise  there  is  danger  of  friction  and  conflict.  Arbitrary  acts  cannot 
be  controlled,  misconduct  cannot  be  punished,  nor  can  any  one  be  held 
directly  and  properly  responsible  for  official  action. 

As  an  illustration  of  our  irresponsible  .system  I  again  call  the  attention 
of  the  legislature  to  our  method  of  prison  management.  At  present  the 
warden  in  charge  of  the  prison  has  no  power  over  his  principal  subordi- 
nates, either  in  their  appointment  or  removal,  except  with  the  concurrence 
of  the  prison  commissioners,  with  an  appeal  to  the  governor  and  council 
in  case  of  conflict ;  the  commissioners  in  charge  of  the  institution  have 
no  power  over  the  appointment  or  removal  of  the  warden  ;  and  neither 
the  governor  nor  any  one  else  has  any  jjowcr  over  the  commissioners. 
In  case  of  mismanagement,  inefficiency,  or  trouble  and  insubordination 
within  the  prison,  such  as  have  occurred  in  times  past,  where  lies  the  re- 
sponsibility or  the  remedy  ?  In  my  judgment  the  warden  should  be  given 
power  over  his  subordinate  officials,  the  prison  commissioners  power  over 
liim,  and  the  governor  power  over  them,  and  for  its  exercise,  he  should 
answer  to  the  people.  A  bill  to  this  effect  was  reported  to  the  last  legis- 
lature by  one  of  its  committees.  In  the  house  it  was  amended  by  a 
provision  that  the  power  of  the  governor  should  be  exercised  only 
with  the  consent  of  the  council,  thus  destroying  the  most  important 
link  in  the  chain  of  responsibility,  and  the  one  wliith  brouglit  this 
executive  power  within  the  control  of  the  people,  and  its  exercise  under 
responsibility  to  them.  The  bill  as  amended  was  properly  defeated  in 
the  senate. 


THE  GOVERNOR  5 

Suppose  that  some  administrative  board,  within  its  limited  authority 
in  part  to  administer  the  people's  government,  should  knowingly  adopt 
a  policy  against  the  wish  of  the  people,  or  against  their  will  as  deliber- 
ately expressed  through  their  legislature,  —  are  the  people  to  have  no 
control  over  such  board  or  its  action  ?  Is  their  government  to  this  extent 
to  be  beyond  their  reach  ? 

All  must  agree  that  the  safe  and  democratic  form  of  government  is  to 
make  these  administrative  officers  in  some  way  responsible  to  the  people. 
This  is  in  accord  with  the  constitutional  intent,  as  expressed  in  the  Dec- 
laration of  Rights,  that  "  All  power  residing  originally  in  the  people,  and 
being  derived  from  them,  the  several  magistrates  and  officers  of  govern- 
ment, vested  with  authority,  whether  legislative,  executive,  or  judicial,  are 
their  substitutes  and  agents,  and  are  at  all  times  accountable  to  them." 
Again  it  says  :  "  In  order  to  prevent  those  who  are  vested  with  authority 
from  becoming  oppressors,  the  people  have  a  right,  at  such  periods  and 
in  such  manner  as  they  shall  establish  by  their  frame  of  government,  to 
cause  their  public  officers  to  return  to  private  life ;  and  to  fill  up  vacant 
places  by  certain  and  regular  elections  and  appointments."  In  giving  to 
the  legislature  authority  to  create  administrative  offices,  and  to  fix  their 
tenure,  duties,  and  powers,  the  constitution  contemplated  that  such  author- 
ity would  be  exercised,  with  due  observance  of  its  injunctions,  to  make 
such  officers  accountable  to  the  people  and  to  presei've  to  the  people 
their  power  over  them. 

How  can  this  best  be  done  ?  It  is  not  practicable  to  elect  them.  They 
must  be  appointed ;  and,  to  be  responsible  to  the  people,  they  should  be 
under  the  control  of  the  elected  servants  of  the  people.  They  cannot  be 
made  responsible  directly  to  the  legislature,  for  this  is  expressly  forbid- 
den by  the  constitution.  The-  legislature  which  created  the  office  can 
abolish  it ;  but  responsibility  dependent  upon  such  remedy  involves  de- 
struction of  the  administrative  machinery  whenever  a  particular  admin- 
istrator is  inefficient  or  unfaithful.  There  remains  only  its  power  of 
impeachment,  restricted  to  cases  of  "  misconduct  and  maladministration 
in  office."  This  involves  trial  and  conviction  upon  formal  charges,  and 
requires  so  much  time  and  effort  that  it  cannot  be  an  effective  and  con- 
stant means  of  making  administrators  responsible  to  the  people. 

The  power  of  removal,  as  a  necessity  for  responsible  control,  must 
then  be  vested  in  the  executive  department ;  and  I  submit  that  it  can 
best  be  vested  in  the  head  of  that  department.  Our  constitution,  in  creat- 
ing his  office,  declared  that  he  "  shall  be  a  supreme  executive  magistrate  "; 
and,  further,  "  that  he  should  in  all  cases  act  with  freedom  for  the  benefit 
of  the  public."  It  nowhere  limits  his  executive  supervision  of  executive 
work,  nor  suggests  that  his  direct  and  immediate  responsibility  to  the 
people  should  be  lessened  by  statutory  creation  of  departments,  boards, 
and  offices  beyond  his  control.  If  they  are  not  within  his  control,  they 
are  beyond  that  of  the  people. 


6  AMERICAN  STATE  GOVERNMENT 

Provisions  much  like  ours  in  the  constitution  of  Pennsylvania  have 
been  construed  by  her  supreme  court  as  vesting  in  the  governor  the 
absolute  power  of  removal.    In  its  decision  the  court  says : 

The  powers  of  the  governor  are  never  suspended.  He  is  at  all  times  author- 
ized to  exercise  "  the  supreme  power."  The  fact  that  an  officer  may  be  removed 
by  the  dilatory  process  of  impeachment  creates  no  argument  against  the  sum- 
mary power  of  removal  by  the  governor.  Crime,  imbecility,  or  gross  neglect  of 
duty  may  demand  that  an  officer  shall  be  removed  at  once.  The  power  to 
protect  the  people  of  the  commonwealth  by  prompt  action  is  wisely  given  to  the 
governor.  In  giving  construction  to  the  constitution  we  cannot  assume  that  he 
will  abuse  that  high  trust.^ 

Our  constitution,  framed  and  adopted  in  the  midst  of  war,  when  mili- 
tar)^  powers  were  uppermost  in  the  minds  of  the  people,  and  remaining 
unchanged  in  this  respect  through  wars  and  rebellions  within  and  without 
the  commonwealth,  gives  to  the  governor  at  such  times  power  almost 
autocratic.  The  exercise  of  this  power  by  a  governor  accountable  to  the 
people  has  been  ever  —  but  especially  during  the  Civil  War,  by  the  great 
Andrew  —  efficient,  responsible,  and  to  their  entire  satisfaction.  It  is 
hardly  conceivable  that  the  constitution  intended  that  the  governor,  thus 
trusted  with  great  responsibility  and  power  in  time  of  danger,  should  in 
civil  administration  have  but  little  power,  and  be  in  name  only  the  '"  su- 
preme executive  magistrate."  I  think  the  framers  of  the  constitution 
meant  that  the  governor  should  be  in  fact  the  chief  magistrate,  and  as 
such  should  have  authority  commensurate  with  his  responsibility ;  and 
this  not  for  the  purpose  of  giving  him  power,  but  of  imposing  upon  him 
responsibility  and  so  retaining  power  in  the  people.  To  them  he  is 
directly  responsible  for  the  exercise  of  his  power,  and  he  hardly  begins 
his  duties  before  he  is  called  upon  to  account  to  them.  If  he  cannot 
justify  his  acts,  he  deserves  and  receives  their  condemnation. 

The  council  has  its  function  in  the  executive  government.  The  con- 
stitution created  it  "  for  advising  the  governor,"  not  for  tying  his  hands, 
not  for  dictating  his  appointments,  nor  for  exercising  coordinate  and 
equal  power  with  him.  It  creates  not  ten  but  one  "  supreme  executive 
magistrate."  The  jurisdiction  of  the  council  was  fully  and  ably  discussed 
in  the  constitutional  convention  of  1853.  No  one  in  that  elaborate  debate 
claimed  as  part  of  its  power  the  right  to  advise  in  cases  of  removals  from 
office.  Its  only  powers,  as  there  stated  and  claimed,  were  to  advise  and 
consent  to  a])|)ointmcnts,  to  advise  in  cases  of  pardon,  to  audit  accounts, 
and  to  act  as  the  supreme  rclurning  board  in  the  election  of  state  officers. 
These  powers  a  majority  of  the  convention  deemed  of  sufficient  impor- 
tance to  justify  the  continued  existence  of  the  council. 

In  appointments  to  office  there  may  well  be  a  confirming  power.    It 
is  approved  by  an  experience  of  more  than  a  century  in  national  and  state 
government;  it  affords  an  op|)ortunity  to  correct  mistakes,  and  to  defeat 
1  Lane  vs.  Commonwealth,  loj  Pa.  St.  481. 


THE  GOVERNOR  7 

any  improper  or  personal  influences  governing  an  appointment ;  but  it 
still  leaves  to  the  executive  a  field  for  selection  practically  unlimited.  If 
not  abused  and  made  a  power  to  dictate,  it  does  not  infringe  upon  ex- 
ecutive responsibility.  Whether  this  power  can  better  be  exercised  by 
the  senate,  as  in  the  national  government  and  in  many  states,  or  by  the 
council,  does  not  seem  to  me  of  the  greatest  importance ;  nor  does  the 
question  whether  the  council  itself  shall  remain  or  be  abolished,  although 
in  but  three  of  our  forty-four  states  is  there  an  elected  executive  council. 
But  whether  power  to  remove  shall  be  shared  by  the  council  is  of  great 
importance  and  vitally  affects  executive  responsibility.  This  power  is 
necessary  for  proper  executive  control.  If  not  intrusted  to  one  alone, 
either  its  efficiency  is  lost  or  greatly  impaired  by  divided  responsibility. 
Such  divided  responsibility,  or  no  responsibility,  is  the  system  of  execu- 
tive management  established  in  this  commonwealth  wholly  by  statute  law, 
mostly  of  recent  enactment.  Experience  has  shown  as  practical  results 
of  such  a  system : 

First.  That  neither  the  governor  nor  the  people  through  him  have  any 
adequate  power  over  the  executive  departments,  of  which  he  is  the  head, 
but  his  power  is  practically  limited  to  suggestions,  advice,  and  appoint- 
ments to  fill  vacancies. 

Second.  That  over  many  of  the  departments  and  executive  offices  there 
is  no  power  of  control  in  any  one. 

Thi7'd.  That  the  power  of  removal  and  so  of  control  usually  requires 
for  its  exercise  a  formal  trial  upon  specific  charges  and  proof  of  absolute 
malfeasance  in  office. 

Foutih.  That  an  officer  of  an  important  public  department,  accused 
of  official  misconduct  which,  in  the  opinion  of  the  governor,  requires  his 
removal,  may  remain  in  office  without  the  confidence  and  against  the  will 
of  his  executive  chief. 

Fifth.  That  a  member  of  an  important  commission  may  hold  his  office 
indefinitely  after  his  term  has  expired,  without  appointment  and  without 
the  approval  of  the  governor. 

Sixth.  That  nominees  of  the  governor,  beyond  criticism  and  objection, 
may  be  refused  confirmation,  for  the  sole  and  declared  purpose  of  hold- 
ing in  office  men  whose  term  of  office  has  expired. 

Seventh.  That  with  the  present  limitations  upon  the  power  of  removal, 
the  power  to  confirm  can  always  be  used  for  this  purpose,  and  success- 
fully in  every  case  of  an  expired  term. 

I  state  these  results  of  our  present  system  not  to  discuss  here  execu- 
tive action  in  any  particular  case,  but  because  I  believe  all  can  agree, 
whatever  their  opinion  in  such  case,  that  a  system  which  can  produce 
such  results  is  without  proper  responsibility,  and  ought  to  be  so  changed 
as  to  give  to  the  chief  executive  power  that  shall  fix  upon  him  full  ex- 
ecutive responsibility. 

I  am  confirmed  in  this  opinion  by  the  established  and  nearly  unbroken 


8  AMERICAN  STATE  GOVERNMENT 

practice  in  the  national  government  for  more  than  a  century,  by  the  full 
recognition  of  this  principle  in  modern  municipal  government,  by  its  adop- 
tion in  the  executive  system  of  other  states,  and  by  its  indorsement  alike 
by  the  student  of  government  and  by  those  who  have  had  practical  ex- 
perience in  its  administration.  The  Constitution  of  the  United  States, 
vesting  in  the  President  the  executive  power,  gives  to  him  the  power  of 
appointment  "  by  and  with  the  advice  and  consent "  of  the  Senate,  and 
is  silent  as  to  the  power  of  removal.  The  same  phrase  and  the  same 
silence  are  found  in  the  constitution  of  our  commonwealth.  The  first 
Congress,  in  establishing  executive  departments,  expressly  conferred  the 
power  of  removal  upon  the  President.  In  the  debate  upon  that  question, 
Madison,  one  of  the  framers  and  expounders  of  the  national  Constitution, 
declared  its  purpose  as  follows  :  "  It  is  evidently  the  intention  of  the  Con- 
stitution that  the  first  magistrate  should  be  responsible  for  the  executive 
department.  So  far,  therefore,  as  we  do  not  make  the  officers  who  are 
to  aid  him  in  the  duties  of  that  department  responsible  to  him,  he  is  not 
responsible  to  his  countr}-."  The  act  conferring  this  power  was  earned 
in  the  Senate  by  the  casting  vote  of  Vice  President  Adams,  who  gave  at 
length  his  reasons  for  his  vote.  Speaking  of  these,  his  grandson,  Charles 
Francis  Adams,  writes :  "  These  reasons  were  not  committed  to  paper, 
and  can  therefore  never  be  known ;  but  in  their  soundness  it  is  certain 
that  he  never  had  the  shadow  of  a  doubt.  His  decision  setded  the  ques- 
tion of  the  constitutional  power  in  favor  of  the  President,  and  conse- 
quently established  the  practice  for  the  country  which  has  continued  down 
to  this  day."  He  adds :  "All  have  agreed  that  no  single  act  of  the  first 
Congress  has  been  attended  with  more  important  effects  upon  the  work- 
ing of  every  part  of  the  government." 

The  policy  thus  established  remained  unchanged  down  to  1867,  and 
gave  to  the  President  unlimited  power,  directly  or  indirectly,  to  remove 
all  subordinate  officers,  now  numbering  more  than  one  hundred  and 
twenty  thousand.  In  that  year,  owing  to  a  conflict  between  the  Presi- 
dent and  Congress,  an  attempt  was  made  to  restrict  his  power  by  the 
passage  of  an  act  of  doubtful  constitutionality,  requiring  the  consent  of 
the  Senate  to  removals  from  office.  That  act  was  greatly  modified  dur- 
ing the  next  administration,  and  was  finally  repealed  in  1887,  after  it  had 
long  ceased  to  have  any  active  operation.  1  do  not  believe  that  the 
people  would  now  permit  the  hands  of  their  President  to  be  tied,  and  ex- 
ecutive responsibility  to  be  divided  and  lost  between  him  and  the  Senate. 

The  same  principle  has  been  successfully  applied  to  municipal  gov- 
ernment and  is  strongly  indorsed  by  municipal  administrators.  I  have 
already  quoted  the  well-known  views  of  ex-Mayor  Low  of  Brooklyn  to 
this  effect.  Equally  emphatic  is  the  opinion  of  ex-Mayor  Hart  of  Boston, 
who  says,  in  a  recent  publication  :  "  It  is  not  certain  that  the  mayor 
should  have  ab.solute  power  of  ai^poinling  his  subordinates  or  any  other 
public  officers.    The  power  of  removal  should  be  vested  in  the  mayor." 


THE  GOVERNOR  9 

An  able  commission  appointed  in  Pennsylvania  in  1878  to  devise  a  plan 
for  city  government,  reporting  in  favor  of  this  principle,  said : 

It  is  self-evident  that  the  affairs  of  government  cannot  be  well  conducted 
unless  there  is  an  executive  head  upon  whom  responsibility  therefor  is  imposed. 
It  is  equally  clear  that  such  responsibility  cannot  be  exacted  without  the  grant 
of  corresponding  power.  ...  It  may  be  said  that  it  is  dangerous  to  clothe  him 
with  so  much  authority.  The  answer  is  that  such  power  must  be  lodged  some- 
where if  good  government  is  to  be  attained,  and  wherever  placed  it  is  essen- 
tially executive  in  its  nature.  The  mayor  is  the  chief  executive  of  the  city,  and 
therefore  he  is  the  proper  officer  to  exercise  it.  Without  it  there  can  be  no 
efficiency  in  the  performance  of  his  duties. 

In  the  great  cities  of  the  country  this  principle  has  been  fully  estab- 
lished as  essential  for  a  responsible  and  efficient  system  of  government. 
Its  soundness  has  been  repeatedly  recognized  by  the  legislature  in  this 
commonwealth  in  its  later  treatment  of  municipal  charters,  notably  in  the 
case  of  the  city  of  Boston.  The  principle  thus  accepted  as  proper  in  the 
executive  government  of  nation  and  city  prevails  in  the  executive  depart- 
ments of  many  of  our  sister  states,  which  vest  the  removing  power  in  the 
governor  alone.  If  undivided  responsibility  is  essential  for  proper  gov- 
ernment in  nation,  city,  and  other  states,  why  is  it  not  wise  to  place  such 
responsibility  also  upon  the  governor  of  our  commonwealth  ?  If  the  prin- 
ciple is  sound,  it  obviously  applies  to  all  executive  power.  I  believe  that 
it  has  been  thoroughly  tested  and  has  proved  to  be  sound,  and  that  it 
best  secures  what  Mr.  Webster  felicitously  called  "  the  people's  govern- 
ment, made  for  the  people,  made  by  the  people,  and  answerable  to  the 
people."  Three  hundred  or  more  subordinate  public  officers,  now  under 
divided  control  or  none,  would  thus  be  made  directly  responsible  to  the 
chief  executive,  and  he,  by  the  constitution,  is  directly  and  immediately 
responsible  to  the  sovereign  people.  These  administrative  officers,  with 
few  exceptions,  exercise  their  jurisdiction  over  the  whole  commonwealth. 
They  should  be  responsible  to  a  representative  of  the  whole  common- 
wealth, and  not  to  a  body  each  of  whose  members  represents  and  is  re- 
sponsible to  only  a  local  constituency.  I  therefore  earnestly  commend  to 
your  favorable  consideration  such  legislation  as  will  give  the  power  to 
remove  all  these  administrative  officers,  for  cause  stated  to  the  governor, 
leaving  to  the  council  the  power  of  confirmation  of  his  appointments. 

In  making  this  recommendation  my  criticism  is  of  a  system  and  not 
of  officials.  I  recognize  the  ability  and  fidelity  which  our  public  servants, 
with  few  exceptions,  have  given  to  their  commonwealth.  Especially  do 
I  appreciate  the  unselfish,  patriotic  labor  freely  given  her  by  noble  men 
and  women  in  her  great  work  of  education,  charity,  and  reform,  and  for 
the  health,  safety,  and  prosperity  of  her  people.  This  recommendation  is 
without  personal  or  selfish  motive,  and  simply  in  the  interest  of  efficient 
and  responsible  government.  The  record  of  my  administration  is  proof 
of  this  fact.    Of  the  few  executive  officers  wholly  under  the  control  of  the 


lO  AMERICAN  STATE  GOVERNMENT 

governor,  not  one  has  been  removed  during  my  year  of  service  except 
the  gypsy-moth  commissioners,  and  they  for  admitted  cause.  Of  the 
many  others  whose  terms  have  expired,  a  very  large  majority,  though 
not  of  my  political  faith,  have  been  reappointed.  It  is  far  easier  and 
more  agreeable  for  a  public  officer  to  have  less  rather  than  greater  re- 
sponsibility, and  the  exercise  of  power  over  offices  is  the  most  irksome 
part  of  executive  duty.  Such  power,  I  repeat,  "  makes  any  man  conserv- 
ative ;  its  selfish  use  for  patronage  only  is  fortunately  sure  to  be  both 
disagreeable  and  destructive."  I  am  confident  that  you  will  receive  this 
recommendation  in  the  spirit  in  which  it  is  offered,  and,  seeking  only  the 
public  good,  will  give  to  it  your  careful  consideration. 


FOLK  AS  GOVERNORS 

By  William  Allen  White 

As  soon  as  he  was  inaugurated  Folk  summoned  the  political  attorneys 
of  the  railroads,  whose  business  it  was  to  bribe  legislators,  and  told 
them  that  he  proposed  to  enforce  the  antipass  law,  which  had  been  a 
dead  letter  on  the  Missouri  statutes  for  nearly  forty  years.  This  law 
prohibits  railroads  from  giving  passes  to  legislators,  or  state  officers,  or 
state  employees.  By  violating  this  law  the  political  attorneys  of  the 
railroads  have  been  able  to  prevent  any  railroad  legislation  fair  to  the 
shippers ;  and,  more  than  that,  have  been  able  to  direct  other  legislation 
so  closely  that  in  times  past  other  governors  of  Missouri  have  sent  for 
these  same  attorneys  and  have  begged  them  to  allow  a  decent  law  to 
pass,  so  that  its  failure  might  not  embarrass  the  party !  This  situation  is 
common  in  American  states  1  But  Folk,  having  a  reputation  as  a  pro- 
ducer of  indictments,  spoke  with  some  point  and  emphasis  when  he 
said  that  if  passes  were  sent  to  the  legislators,  he  would  not  bother  with 
the  legislators,  but  would  see  that  indictments  were  brought  against  the 
offending  attorneys  of  the  railroads !  Also  he  told  them  to  keep  away 
from  the  capital  during  legislative  session.  He  announced  that  if  Bill 
Phelps  —  one  of  the  most  notorious  of  the  railroad  lobbyists  —  hung 
around  Jefferson  City  during  the  session  of  the  legislature,  something 
important  would  happen.  And  when  Mr.  Phelps  had  a  few  hours  of 
private  business  in  Jefferson  City  he  reported  to  the  governor  upon 
arrival  and  told  him  when  he  would  leave,  and  explained  what  he  would 
be  doing  while  he  stayed.  It  was  Bill  Phelps  who  said  of  Senator 
Stone  of  Missouri:  "Stone  sucks  eggs  as  I  do,  but  he  hides  the 
shells."  Phelps  is  not  ashamed  of  his  calling,  and  only  buys  when  he 
deems  it  necessary.  He  intimates  lliat  Stone  adds  hypocrisy  to  his  other 
shortcomings. 

1  From  McClurc's  Magazine,  December,  1905. 


THE  GOVERNOR  II 

While  Folk  was  conferring  with  the  railroad  representatives  he  told 
them  that  if  they  would  stay  away  from  the  capital  and  call  off  Phelps, 
they  might  have  his  help  to  defeat  any  unfair  measure  proposed  in  the 
legislature,  and  he  was  as  good  as  his  word.  Half  a  dozen  unfair  rail- 
road bills  were  passed  and  were  promptly  vetoed  by  the  governor.  But 
while  the  unfair  bills  were  killed  by  the  governor,  he  gave  his  support  to 
the  needed  railroad  legislation,  and  for  the  first  time  since  1873  a  law 
was  passed  by  the  Missouri  legislature  regulating  freight  rates  in  the 
state.  A  law  was  passed  prohibiting  railroad  employers  from  working 
their  employees  more  than  sixteen  hours  at  a  time  on  freight  runs  ; 
another  law  was  enacted  requiring  corporations  to  give  employees  quit- 
ting their  service  a  letter  stating  the  reason  the  employees  were  dis- 
charged, thus  eliminating  the  black  list ;  a  fair  demurrage-charge  law 
was  put  on  the  books,  and  railroads  were  compelled  to  stop  at  stations 
when  ordered  to  do  so  by  the  railroad  commissioners.  A  damage  act 
became  a  law,  authorizing  suit  for  damages  resulting  from  the  death  of 
an  unmarried  adult,  and  increasing  the  amount  which  may  be  recovered 
from  $5000  to  $10,000.  Heretofore  there  had  been  no  right  of  action 
for  the  negligent  death  of  an  adult  unmarried  person.  The  railroads 
have  always  succeeded  in  killing  off  legislation  of  this  kind ;  the  long- 
hoped-for  law  permitting  plaintiffs  to  sue  the  original  and  connecting 
carriers  who  injure  shippers  by  delays  or  otherwise  was  passed ;  as  also 
was  the  law  authorizing  the  railroad  commissioners  to  compel  the 
establishment  of  freight  depots  at  junction  points,  when  the  commis- 
sioners decide  that  it  is  just.  "  Railroads  "  were  legally  defined  to  in- 
clude street  railways,  and  private-car  companies  were  made  subject  to 
taxation.  The  work  of  men  in  smelters  and  reduction  works  was  limited 
to  eight  hours.  A  compulsory  educational  law  was  passed.  At  different 
times,  for  many  years,  state  platforms  of  both  parties  had  promised 
these  laws  and  the  people  desired  them,  but  the  reign  of  the  railroad 
attorneys  in  Jefferson  City  had  prevented  such  legislation.  Government 
by  corporation  was  overthrown  by  Governor  Folk  and  government  by 
the  people  reestablished,  simply  through  the  enforcement  of  existing 
laws.  The  antipass  law  had  been  in  the  hands  of  every  governor  of 
Missouri  for  a  generation,  but  as  nearly  all  of  those  governors  had  been 
elected  by  railroad  influence,  they  were  afraid  to  use  the  club  in  their 
hand  and  be  loyal  to  the  people  who  paid  the  taxes. 

Among  other  laws  passed  by  the  Missouri  legislature,  which  had  the 
active  opposition  of  the  corporations  at  long  range,  was  the  law  prohibit- 
ing race-track  gambling  and  making  it  a  felony.  The  St.  Louis  race 
track,  known  as  the  Debnar  tracks  was  one  of  the  most  active  gambling 
places  in  the  country,  and  the  telegraph  companies  sent  the  reports  of 
the  Delmar  races  all  over  the  land,  turning  a  pretty  penny  thereby. 
The  track  was  outside  the  corporation  of  St.  Louis,  in  St.  Louis  County, 
where  the  governor  seemed  to  have  no  power  to  enforce  the  law.    The 


12  AMERICAN   STATE  GOVERNMENT 

Delmar  people  kept  on  racing  and  gambling.  Local  sentiment  in  St. 
Louis  County  was  with  them,  and  naturally  the  local  officers  were  in 
sympathy  with  the  gamblers,  and  they  prepared  to  invite  all  Missouri  to 
laugh  at  its  overzealous  governor.  Folk  allowed  their  violations  of  the 
law  to  become  so  flagrant  that  the  whole  state  understood  the  situation. 
He  made  it  clear  to  the  people  that  it  was  their  law  and  not  his  which 
was  broken,  and  thus,  having  aroused  the  state,  he  had  public  sentiment 
behind  him,  and  he  went  after  the  gamblers.  He  planned  his  fight  as  a 
chess  player  lays  out  his  game.  He  was  told  he  could  do  nothing. 
Lawyers  very  generally  agreed  that  the  governor  had  no  power ;  but 
Folk  determined  for  himself  that  it  was  not  only  his  right  but  his  duty 
to  stop  organized  crime  anywhere  in  the  state.  If  there  should  be  a 
question  as  to  his  right  to  use  the  police  outside  of  the  city  which  hired 
them,  he  held  that  those  engaged  in  the  commission  of  felonies  could 
not  legally  complain.  No  rights  of  theirs  would  be  violated  by  police 
interference. 

The  gamblers  expected  him  to  call  out  the  state  militia,  and  were 
prepared  to  impeach  the  governor  for  sending  the  militia  where  the 
local  officers  had  not  asked  for  it.  But  one  day  a  squad  of  St.  Louis 
policemen  appeared  at  the  gates  of  the  Delmar  track  and  asked  for 
admission,  and,  being  refused,  departed.  That  was  all.  The  next  day 
they  appeared,  asked  for  admission,  and,  being  refused,  walked  in. 
They  made  no  arrests,  but  stood  around,  and  left  when  the  races  were 
over.  The  next  day  the  same  squad  of  policemen  appeared  at  the  gates, 
marched  in,  and  at  the  proper  time  arrested  the  bookmakers.  Then 
Folk's  intimate  knowledge  of  human  nature  came  into  play.  Book- 
makers are  proud  men,  and  are  prone  to  glory  in  their  impudence  and 
their  superiority  to  the  law.  So  the  Delmar  gentry  were  loaded  into  an 
open  patrol  wagon,  and,  instead  of  being  driven  quickly  and  in  a  surrep- 
titious manner  to  their  destination,  were  driven  at  a  dead  walk  six  miles 
through  the  heart  of  the  city  to  the  police  station,  surrounded  by  a  hoot- 
ing, jibing  crowd  of  scornful  citizens.  When  the  crowd  grew  tired  and 
threatened  to  dissolve,  the  drivers  of  the  patrol  wagon,  following  instruc- 
tions, slowed  up  or  stopped  to  let  the  crowd  regather  and  jeer  the  law 
breakers.  The  next  day,  when  it  was  rumored  that  there  would  be  a 
big  raid  and  that  the  track  frequenters  would  be  haled  into  court,  the 
gates  of  the  Delmar  track  were  closed,  and  have  been  ever  since.  A 
notice  was  posted  on  the  Delmar  gate  that  owing  to  the  arbitrary  action 
of  the  police  the  races  would  discontinue.  The  owners  of  the  Delmar 
track  represented  great  wealth  and  much  poliliral  power  in  Missouri. 
They  complained  bitterly  that  the  law  did  not  permit  the  governor  to 
use  the  police  in  stopping  felonious  violations  of  the  law,  but  neverthe- 
less they  quit.  The  horses  are  gone,  the  bookmakers  have  fled,  and 
gambling  upon  the  results  of  the  St.  Louis  races  has  ceased  all  over  the 
United  States.    More  than  that,  as  one  of  the  indirect  results  of  this 


THE  GOVERNOR 


13 


lesson,  the  Western  Union  directors  have  decided  to  take  their  wires  out 
of  all  race-track  stations,  and  receive  only  such  gambling  news  as  is 
brought  to  them.  The  company  will  not  be  the  partners  of  touts. 
The  gamblers  went  before  the  state  supreme  court,  asking  that  body 
to  dissolve  the  temporary  injunction  secured  by  the  chief  of  police  of 
St.  Louis  to  prevent  the  sheiiff  of  St.  Louis  County  from  arresting 
the  St.  Louis  policemen  who  appeared  at  the  race  track  to  enforce 
the  law. 

As  soon  as  the  legislature  adjourned  and  left  his  hands  free.  Governor 
Folk  set  about  to  enforce  the  Sunday  closing  law,  which  has  been  in 
the  Missouri  statutes  forty  years  unamended.  He  has  control  of  the 
police  boards  in  three  first-class  cities  in  Missouri,  —  Kansas  City,  St. 
Joseph,  and  St.  Louis,  —  and  also  the  control  of  the  excise  commissioners 
there,  who  have  absolute  power  to  revoke  a  saloonman's  license  at  will. 
The  supreme  court  had  decided  that  the  Sunday  closing  law  was  in- 
operative against  every  business  except  the  saloon,  and  the  saloon  men 
could  not  compel  other  stores  and  shops  to  close  because  the  saloons 
were  shut  up.  That  weapon  was  denied  them.  And  when  the  order 
came  to  close  at  midnight  Saturday  they  closed.  The  first  Sunday  a 
throng  of  drunken  men  and  women  crowded  the  St.  Louis  bridge,  com- 
ing and  going  to  Illinois,  where  liquor  could  be  bought.  The  second 
Sunday  the  saloons  closed.  Then,  after  the  custom  in  such  cases,  a  few 
of  them  opened  their  back  doors.  Their  licenses  were  promptly  revoked 
by  the  excise  commissioner.  The  throng  on  the  St.  Louis  bridge  was 
not  so  large  that  Sunday.  The  third  Sunday  —  which  is  the  Sunday 
when  Sunday  closing  spasms  generally  cease  —  a  few  more  back  doors 
opened,  and  Monday  morning  the  keepers  of  those  places  lost  their 
licenses.  There  were  a  few  convictions  also  in  court  of  violations  of  the 
law.  The  crowd  on  the  bridge  was  gone.  The  people  were  getting  used 
to  the  law.  And  from  that  time  on,  St.  Louis,  Kansas  City,  and  St. 
Joseph  saloons  have  been  closed  on  Sunday,  and  the  excise  law  has 
been  observed  as  well  as  the  law  against  larceny  or  against  murder. 
And  the  German-American  population  of  St.  Louis,  which  is  supposed 
to  be  particularly  obstinate  in  its  demand  for  beer,  law  or  no  law,  is 
larger  in  St.  Louis  than  in  any  American  city  of  its  size.  The  German- 
Americans  are  there  obeying  and  upholding  the  law.  The  story  that 
they  are  lawbreakers  is  a  saloon  keeper's  scarecrow  to  frighten  weak- 
kneed  politicians.  Outside  of  St.  Louis,  in  St.  Louis  County,  where  the 
amusement  parks  are  located,  the  governor's  display  of  policemen  at  the 
Delmar  race  track  put  the  fear  of  the  law  into  the  saloon  keepers  and 
restaurant  men  so  completely  that  the  law  is  observed  there  strictly. 
The  hotel  bars  and  all  drinking  places  are  closed  on  Sunday  in  the  first- 
class  cities  of  Missouri  for  the  first  time  in  the  history  of  the  state.  And 
to-day  Missouri  is  probably  the  only  state  in  the  Union  without  a  dead- 
letter  law  on  its  statute  books. 


14  AMERICAN  STATE  GOVERNMENT 

And  this  is  how  it  has  paid :  Since  the  election  of  Folk  as  circuit 
attorney  of  St.  Louis  the  value  of  land  in  the  state  has  increased  20  per 
cent.  The  annual  immigration  to  the  state  has  increased  25  per  cent. 
The  railroads  announce  that  after  a  summer  of  Sunday  closing  the 
Sunday  excursions  into  the  three  first-class  cities  of  the  state  have  in- 
creased nearly  10  per  cent,  showing  that  it  pays  to  cater  to  the  sober 
and  industrious  rather  than  to  the  lawless.  The  Sunday  business  of  the 
local  street  cars  has  increased  25  per  cent,  and  the  Monday  deposits  in 
the  banks  of  the  cities  have  increased  remarkably ;  while  the  number 
of  arrests  in  the  three  cities,  where  statistics  are  available,  has  decreased 
20  per  cent  and  the  Sunday  arrests  have  diminished  40  per  cent.  More 
than  this,  the  trade  of  the  grocers  and  small  merchants  has  increased  so 
materially  that  they  are  making  a  sentiment  for  Sunday  closing  strong 
enough  to  maintain  it  when  Folk  leaves  the  governor's  office  at  the  end 
of  his  term  in  1909.  Similarly,  the  commercial  clubs  and  business  men's 
clubs  in  the  Missouri  cities  have  generally  indorsed  the  enforcement  of 
the  antigambling  law,  on  the  ground  that  clerks  and  employees  are  no 
longer  tempted  to  tap  tills  and  gamble.  A  wholesome  sentiment  for  the 
enforcement  of  law,  as  the  sensible  business  thing,  is  growing  up  all 
over  Missouri.  It  has  its  mainspring  in  the  religious  morality  of  the  gov- 
ernor in  his  attitude  toward  his  official  duty,  and  it  is  appearing  among 
citizens,  not  as  a  moral  principle,  but  as  a  business  conviction.  It  is 
making  itself  felt  practically  in  politics,  and  the  Republican  state  offi- 
cials, who  in  any  other  state  and  under  any  other  conditions  might  feel 
that  party  policy  required  them  to  hinder  rather  than  help  a  Democratic 
governor,  are  doing  all  they  can  to  help  him.  Attorney-General  Hadley, 
a  young  Republican  of  the  new  school  of  politics,  has  been  standing 
shoulder  to  shoulder  with  Folk  in  every  important  fight,  and  he  deserves 
the  highest  praise  for  the  way  he  has  risen  above  partisan  bias  and  has 
become  a  faithful  servant  of  all  the  people.  But  for  Hadley's  sense  and 
loyalty  Folk  might  have  been  badly  crippled. 


EXECUTIVE  USURPATION  1 

In  his  address  at  Columbia  University  Governor  Hughes  expressed 
surprise  that  he  had  been  accused  of  "executive  usurpation."  He  de- 
scribed, with  perfect  truth,  his  own  course  as  that  of  a  governor  who  had 
endeavored  to  ascertain  what  was  best  for  the  state,  and  then  had  pub- 
licly uttered  his  convictions,  inviting  and  accepting  the  support  of  public 
.sentiment.  He  added  that  his  determination  had  been  to  have  all  these 
questions  of  important  public  policy  discussed  on  their  merits,  with  every- 
thing "'  regarded  in  the  light  of  reason."    By  that  he  plainly  meant  that 

1  From  the  Nation,  June  20,  1907.    Reproduced  by  permission. 


THE  GOVERNOR 


15 


he  had  not  sought  to  impose  his  will  by  the  use  of  patronage  or  by 
entering  into  political  bargains.  Granting  his  clear  and  open  purpose, 
and  looking  at  the  results  achieved,  it  cannot  be  denied  that  he  makes 
out  a  plausible  case  for  his  contention  that  what  we  have  had  at  Albany 
this  year  has  been  not  "  government  by  executive  usurpation  "  but  "gov- 
ernment by  public  opinion  after  discussion." 

Pure  theory  is,  of  course,  against  the  governor.  In  any  strict  view  of 
the  "  division  of  powers  "  room  cannot  be  found  for  such  activities  as  his 
in  directing  the  course  of  legislation.  No  definition  of  the  office  of  gov- 
ernor, no  written  grant  of  power  to  the  executive,  contemplates  a  course 
like  that  of  Governor  Hughes  or  of  President  Roosevelt.  It  may  well  be 
doubted,  however,  if  we  have  ever  applied  pure  theory  to  the  conduct  of 
government  in  this  country.  If  we  had,  we  should  not  have  been  the 
sons  of  our  sires.  It  is  the  merit  and  even  glory  of  Anglo-Saxon  political 
institutions  that  they  are  not  neatly  logical  nor  nicely  consistent.  Bagehot 
thanked  Heaven  that  Englishmen  were  not  politically  lucid,  and  Americans 
come  in  for  their  share  of  that  ascription  of  praise.  Forcible  executives 
have  always  made  their  native  vigor  felt,  despite  forms  and  precedents. 
Hughes  is  not  so  imperious  a  governor  of  New  York  as  was  Clinton ; 
nor  have  the  exploits  of  the  Big  Stick  yet  rivaled  those  of  Old  Hickory. 
Emerson  pointed  out  the  law  of  character,  going  deeper  than  any  rule 
of  politics,  that  a  man  of  inherent  capacity  and  springing  virility  can  do 
his  work  easily  even  when  apparently  fettered  by  the  oldest  and  mold- 
iest  conventions.    They  give  way  to  his  touch  of  strength. 

Many  causes  seem  lately  to  have  been  operative  in  making  democra- 
cies more  tolerant  of  the  exaltation  of  the  executive,  or  even  eagerly 
welcoming  it.  Mr.  Bryce  referred  to  one  of  them  in  his  remarks  last  week 
at  Chicago  on  democratic  tendencies.  People  are  more  and  more  com- 
ing to  look  to  leaders.  This  does  not  necessarily  mean  the  abdication  of 
individual  judgment.  Least  of  all  does  it  signify  a  hankering  for  a  dicta- 
tor or  despot.  Before  the  elections  of  1849  ^^  France  an  intelligent 
Frenchman  told  Nassau  Senior  that  many  farmers  and  peasants,  and 
especially  women,  were  saying :  "'  We  are  tired  of  these  assemblies.  77 
nous  faut  un  maitre.''^  It  was  a  clear  sign  that  Louis  Napoleon  was 
coming.  But  it  is  in  nothing  of  that  spirit  of  abasement  that  modern 
democracies  are  craving  strong  leadership.  They  do  not  want  a  master ; 
they  are  seeking,  rather,  a  powerful  servant.  What  they  desire  is  the 
emergence  of  some  man  who  will  both  interpret  and  guide  the  popular 
will,  and,  by  use  of  the  powers  of  influential  office,  get  that  will  written 
into  law  or  translated  into  action.  It  does  not  matter  greatly  what  the 
office  happens  to  be  called.  The  desired  leader  may  show  himself  as 
mayor  or  district  attorney,  as  governor  or  president ;  less  often,  as  rep- 
resentative or  senator.  The  essential  thing  is  that,  once  the  commanding 
quality  is  shown  and  the  great  public  work  set  going,  the  people  are 
certain  to  rise  to  the  leadership. 


1 6  AMERICAN  STATE  GOVERNMENT 

There  are  obvious  reasons  why  these  outstanding  men  should  nowa- 
days so  frequently  be  executives.  The  very  mass  of  men  in  legislatures 
and  Congress  makes  differentiation  hard.  Only  the  exceptional  members 
show  their  heads  above  their  fellows.  Constituencies  seem  more  and 
more  inclined  to  be  content  with  the  services  of  their  immediate  repre- 
sentatives in  the  way  of  "  looking  after  the  deestricts,"  being  reasonably 
honest,  and  voting  as  they  should  on  the  large  questions.  But  for  initia- 
tive and  large  inspiration  they  are  now  accustomed  to  search  elsewhere. 
And  one  unquestioned  function  of  executives  gives  them  a  great  oppor- 
tunity to  catch  the  eye  of  the  public.  They  have  an  unchallenged  right, 
as  Governor  Hughes  said,  to  "  state  their  convictions,"  implying  the  rec- 
ommendation of  laws.  Now  this  privilege,  or  duty,  in  the  present  state  of 
affairs  goes,  as  if  made  for  it,  with  the  peculiar  enlargement  of  executive 
powers  which  we  are  seeing  in  our  day.  It  enables  a  vigorous  and  clear- 
headed governor  or  president  to  make  himself  an  advocate  with  the 
people,  at  the  same  time  that  he  sees  to  the  execution  of  the  laws,  and  to 
put  himself  at  the  head  of  movements  to  secure  new  laws.  In  a  sense 
this  is  an  executive  intrusion  upon  the  province  of  lawmakers,  but  must 
a  citizen  be  dumb  simply  because  he  is  governor  ?  Having  been  chosen 
directly  by  the  people  to  the  highest  office  within  their  gift,  shall  he  be 
debarred  from  saying  what  he  thinks  to  be  for  the  good  of  the  people  ? 
We  see  how  great  are  the  possibilities  of  that  conceded  power  of  the  ex- 
ecutive to  "  state  his  views  "  and  urge  them  upon  legislature  or  Congress. 

If  any  man  can  draw  a  hard-and-fast  line  in  these  matters  of  executive 
usurpation,  we  should  like  to  meet  him.  On  second  thought  we  should 
not  like  to  meet  him,  for  he  would  certainly  be  a  pedant  and  a  bore.  The 
only  really  satisfying  distinction,  for  the  individual  critic,  that  we  ever 
heard  of  is  that  of  the  old  gentleman  at  Washington  who  said  that  he 
liked  to  have  the  President  interfere  in  behalf  of  what  he  himself  wanted, 
but  was  ready  to  have  impeachment  proceedings  begun  when  the  President 
took  the  other  side.  In  our  hearts  most  of  us  come  pretty  near  that 
position.  There  is,  however,  one  sharp  division  that  can  be  made.  A 
governor  may  impose  his  will  upon  the  legislature  as  Hill  did,  or  Odcll 
did,  that  is,  by  appeal  to  corrupt  motives,  either  personal  or  political. 
That  sort  of  usurpation  is  always  to  be  condemned,  not  because  it  is 
usurpation,  but  because  it  is  corruption.  Between  that  and  the  method 
which  Governor  Hughes  has  followed  there  is  all  the  difference  of  night 
and  day. 


THE  GOVERNOR  ty 

GOVERNORS  AND  LEGISLATURES^ 

To  the  Editor  of  the  Evening  Post: 

Sir :  It  is  doubtful  whether  there  has  been,  since  the  Civil  War,  any 
event  of  wider  political  significance  or  of  more  radiant  promise  than  the 
renomination  and  reelection  of  Governor  Hughes.  An  editorial  from 
your  paper  of  September  i6  is  before  me,  and  states  the  case  so  per- 
fectly that  I  will  venture  to  quote  one  or  two  sentences : 

Governor  Hughes  has  discharged  his  duties  with  an  eye  single  to  the 
welfare  of  the  state.  ...  In  the  case  of  Kelsey  he  convincingly  demonstrated 
his  inflexible  devotion  to  principle.  He  would  not  sacrifice  it  to  immediate 
ends.  .  .  .  He  has  beaten  the  corruptionists  and  forced  the  legislature  to  recog- 
nize in  himself  the  people's  will. 

The  lesson  here  drawn  is  as  to  the  power  of  personality  and  what  a 
potent  instrument  it  is,  when  embodying  high  moral  principles,  for 
arousing  the  mass  of  the  people,  when  the  principles  by  themselves 
would  be  inadequate ;  and  secondly,  as  to  what  a  splendid  population  it 
is  that  can  be  so  aroused.  For  one,  I  firmly  believe  that  the  great 
majority  of  the  people  of  the  whole  United  States  could  be  reached  in 
the  same  way  if  proper  means  were  employed. 

But  with  the  profoundest  admiration  and  respect  for  Governor  Hughes, 
it  seems  a  duty,  with  an  eye  to  the  future  of  this  country  and  of  democ- 
racy through  the  world,  to  examine  more  closely  the  extent  of  his 
achievements.  It  must  be  confessed  that  these  are  limited  to  details 
and  do  not  cover  methods.  He  has  beaten  the  machine,  but  he  has  not 
reached  the  machinery.  He  has  shown  how  bad  men  can  be  check- 
mated, but  he  has  not  shown  how  they  can  be  replaced  by  good  ones. 
If  he  had  retired  at  the  end  of  this  term  as  he  proposed  to  do,  the 
waters  would  have  closed  after  him  and  the  old  system  would  have 
returned.  If  he  does  so  after  another  term,  or  by  an  election  to  the 
presidency,  without  having  widened  his  range,  he  will  leave  only  a 
memory  and  a  name. 

To  develop  these  ideas  it  will  be  necessary  to  take  a  wider  view.  In 
all  the  state  constitutions  practically  the  whole  of  government  is  given 
to  the  legislatures.  The  executive  has  hardly  a  shadow  of  real  power. 
Now  if  there  is  one  lesson  which  modern  history  teaches,  it  is  that  a 
legislature  cannot  govern.  The  Long  Parliament  tried  it  in  England  in 
the  seventeenth  century,  probably  as  good  a  body  of  men  as  could  be 
found  in  the  countr}^  Yet  within  ten  years  Cromwell  turned  them  out 
of  doors  and  established  a  military  despotism.  In  the  eighteenth  century 
the  French  Legislative  Assembly,  after  beheading  also  their  king,  tried 
to  govern.  The  evidence  seems  to  show  that  the  first  gathering  was  of 
as  good  men  as   France  could   furnish.    Napoleon   came  exactly  like 

1  From  the  Evening  Post,  New  York,  November,  190S.    Reproduced  by  permission. 


1 8  AMERICAN   STATE  GOVERNMENT 

Cromwell,  turned  them  out  of  doors,  and  attempted  the  conquest  of 
Europe.  Madison  has  left  many  wise  sayings,  but  none  more  prescient 
than  when,  in  the  convention  of  1787  (just  before  the  outbreak  of  the 
first  French  Revolution),  he  declared  that 

Experience  proves  a  tendency  in  all  our  governments  to  throw  all  power 
into  the  legislative  vortex.  The  executives  of  the  states  are  little  more  than 
ciphers.  The  legislatures  are  omnipotent.  If  no  effectual  check  be  devised 
on  the  encroachments  of  the  latter,  a  revolution  will  be  inevitable. 

The  result  has  been  postponed  by  the  greatest  material  prosperity 
ever  known  in  the  world,  but  dark  clouds  are  already  gathering  on  the 
horizon. 

Consider  how  our  legislatures  try  to  govern.  When  they  meet  in  ses- 
sion there  are  two  houses  in  each  state,  varying  from  fifty  to  three  hun- 
dred men,  all  representing  different  districts  and  all  precisely  equal.  There 
is  nobody  there  representing  the  state  as  a  whole  or  the  state  administra- 
tion. The  only  duty  of  each  member  is  to  get  all  he  can  for  his  constitu- 
ents, and  he  would  be  regarded  as  impertinent  if  he  interfered  with  the 
schemes  of  any  of  the  others.  Every  member  can  propose  as  many 
measures  as  he  pleases  upon  any  subject  he  pleases,  and  they  are  all 
thrown  on  an  equal  footing  into  a  number  of  committees  made  up  by 
the  Speaker,  who  is  elected  for  that  purpose,  at  his  discretion ;  while 
the  legislature,  with  little  discussion,  passes  what  the  committees  recom- 
mend. It  is  an  ideal  system  for  corruption.  It  was  the  origin  of  the 
lobby,  that  is,  a  power  which,  by  corrupt  methods,  can  induce  a  mass  of 
conflicting  atoms  to  act  together  for  private  ends ;  and  out  of  the  lobby 
is  involved  the  boss.  What  the  government  of  the  state  is,  that  will  be 
the  government  of  the  cities. 

Reform  of  the  state  government  must  be  the  work  of  the  governor. 
The  object  of  the  legislature  is  to  maintain  things  as  they  are,  to  keep 
the  governor  in  subjection,  and  the  people  in  ignorance.  It  is  curious  to 
note  how  reform  candidates  for  governor  arc  springing  up  all  over  the 
country,  and  how  promptly  the  people  respond  by  their  election,  —  another 
testimony  to  the  merits  of  universal  suffrage.  But  they  do  not  know 
what  to  do,  and  so  after  one  or  two  terms  they  pass  on  to  obscurity 
and  oblivion. 

Here,  then,  is  work  for  Governor  Hughes,  and  there  is  not  in  the 
world  a  more  splendid  opportunity.  I  have  always  hoped  that  this 
honor  was  reserved  for  Massachusetts,  but  am  ready  to  welcome  it 
anywhere. 

Entering  upon  .the  governorship  in  his  first  term.  Governor  Hughes 
took  an  early  step  in  this  direction.  He  ordered  the  governor's  private 
room  to  be  closed,  and  received  all  callers  in  (he  public  hall,  with  specta- 
tors present.  It  is  this,  probably,  which  saved  liiin  from  private  importu- 
nities, which  he  might  have  been  wholly  unable  to  resist.    Why  should 


THE  GOVERNOR 


19 


he  not  take  the  next  step?  Instead  of  traveling  about  the  state  and 
demeaning  his  office  by  speaking  at  local  clubs  and  dinners,  why  should 
he  not  demand  the  opportunity  to  address  the  people  as  a  whole  in  the 
only  place  where  that  is  possible  ?  The  governor  alone  represents  the 
whole  state,  all  of  the  people,  and  the  whole  administration.  Why  should 
he  not  have  the  right  of  speech  in  open  legislature,  accompanied  by  the 
responsibility  which  would  offset  any  danger  in  giving  him  increased 
power  ?  Only  because  the  private  interests  in  the  legislature  do  not  want 
him  there  and  will  not  listen  to  any  proposal  tending  towards  it.  Of 
course  he  would  need  very  shortly  to  be  accompanied  by  heads  of 
departments,  but  that  would  be  of  little  use  while  these  are  separately 
elected.  One  of  his  first  moves  would  be  to  show  the  necessity  of  their 
appointment  by  the  governor  with  its  condensation  of  responsibility. 
It  is  this  public  contact  of  executive  and  legislature  which  is  the  key- 
note of  all  political  reform  throughout  the  United  States.  In  February, 
1 88 1,  a  committee  of  eight  members  of  the  United  States  Senate  unani- 
mously recommended  it  in  the  case  of  members  of  the  cabinet,  but  it  is 
characteristic  of  the  legislature  that  this  has  never  since  received  the 
slightest  attention. 

Space  will  not  permit  further  discussion  now,  but  it  offers  the  only 
means  of  averting  the  revolution  predicted  by  Madison,  and  the  disas- 
trous advent  of  pacificators  like  Cromwell  and  Napoleon. 

If  Governor  Hughes  could  be  induced  to  use  for  this  purpose  the 
great  influence  which  he  has  acquired  with  the  people  of  New  York,  and 
thus  set  an  example  to  the  other  forty-five  states,  he  would  confer  the 
greatest  benefit  upon  the  country  of  any  man  since  Washington  and 

Lincoln,  —  names  of  what  a  different  import ! 

G.  Bradford 
Boston,  November  11 


THE  PARDONING  POWERS 

By  Honorable  John  N.  Henderson^ 

The  pardoning  power  is  a  prerogative  of  sovereignty,  and  in  England, 
from  time  immemorial,  it  has  belonged  to  the  crown.  In  this  countr)^, 
in  all  federal  matters,  the  President  of  the  United  States  holds  the  par- 
doning power,  except  in  cases  of  impeachment.  By  the  constitutions  of 
most  of  the  states  the  pardoning  power  is  lodged  with  the  respective 
governors  thereof.  In  a  few,  however,  as  in  New  Jersey,  Nevada,  Penn- 
sylvania and  Vermont,  the  power  to  grant  pardons  is  vested  in  boards, 
consisting  of  the  governor  and  some  of  the  heads  of  departments.  In  the 
majority  of  those  states  where  the  sole  power  is  vested  in  the  governor, 

1  A  paper  read  before  the  Texas  Bar  Association,  1903. 

2  Justice  of  the  Court  of  Criminal  Appeals  of  Texas. 


20  AMERICAN  STATE  GOVERNMENT 

the  law  provides  them  with  advisory  boards,  who  investigate  cases 
and  make  report  of  their  conclusions  to  the  executive.  As  a  general 
proposition  a  pardon  is  a  mere  act  of  grace,  and  is  not  founded  on  any 
preliminary  steps  that  furnish  legal  merits  or  a  legal  title  (Com.  vs.  Hol- 
loway,  24  Pa.  St.  210).  In  such  cases  the  governor  exercises  the 
authority  to  grant  a  pardon  of  his  own  sweet  will.  This  pardon  may  be 
either  absolute  or  conditional,  and  the  condition  may  be  precedent  or  sub- 
sequent. If  it  be  precedent,  the  pardon  does  not  take  effect  until  the 
performance  of  the  condition.  If  it  is  subsequent,  the  happening  of  the 
contingency  may  avoid  the  pardon,  and  in  such  event  the  convict  may 
be  remanded  to  the  penitentiary  (Ex  parte  Wells,  18  How.  (U.  S.),  307  ; 
The  State  vs.  Barnes  (S.  E.),  10  S.  E.  iii  ;  Ex  parte  Kennedy,  135 
Mass.  48  ;  Carr  vs.  The  State,  19  Texas  Cr.  635).  In  the  greater  num- 
ber of  American  states,  while  the  authority  is  complete  in  the  governor 
under  the  constitution,  yet  the  legislature  has  regulated  the  exercise  of 
this  power  by  certain  rules,  such  as  publicity  of  the  application,  notifica- 
tion to  the  county  authorities  where  the  conviction  took  place,  and  a 
public  hearing ;  and  pardon  boards  are  authorized  to  hear  evidence  and 
argument.  And  in  nearly  all  the  states,  after  the  pardon  has  been  granted 
by  the  governor,  the  same,  together  with  the  reasons  therefor,  is  required 
to  be  reported  by  him  to  the  next  ensuing  legislature. 

In  our  own  state  the  pardoning  power  is  conferred  on  the  governor  by 
Article  4,  Section  2,  of  the  constitution,  and  the  essential  portions  thereof 
are  as  follows : 

In  all  criminal  cases,  except  treason  and  impeachment,  he  [the  governor]  shall 
have  power,  after  conviction,  to  grant  reprieves,  commutations  of  punishments, 
pardons  .  .  .  provided  that  in  all  cases  ...  of  the  commutation  of  punishment  or 
pardons,  he  [the  governor]  shall  file  in  the  office  of  the  Secretary  of  State  his 
reasons  therefor. 

Prior  to  1893  the  onus  of  investigating  all  applications  for  pardon  devolved 
on  the  governor  himself,  which  he  usually  did  through  his  private  secretary 
or  some  officer  in  his  department.  But  during  Governor  Hogg's  first 
administration  a  Board  of  Pardons  was  provided  by  the  legislature  in 
language  substantially  as  follows  : 

The  governor  is  hereby  authorized  to  call  to  his  aid  for  a  time  not  exceeding 
one  hundred  days  per  annum  two  qualified  voters  of  this  state,  who  shall  perform 
such  duties  as  may  be  directed  by  him  consistent  with  the  consdtudon,  as  he 
may  deem  necessary  in  disposing  of  all  applicadons  for  pardon  (Rev.  Stats., 
Art.  3582a). 

Subsequently,  during  the  administration  of  Governor  Culbcrtson,  at 
his  suggestion,  this  act  was  amended  by  the  twenty-fifth  legislature  (see 
laws,  p.  49).  However,  the  only  amendment  consisted  in  increasing  the 
working  time  of  said  Hoard  of  I'ardons  to  three  hundred  davs  instead 
of  one  hundred.    This  is  all  the  law  wc  have  on  the  subject.    But  it  has 


THE  GOVERNOR  2  1 

evidently  afforded  the  basis  for  a  great  number  of  pardons,  as  during 
Governor  Hogg's  administration  he  averaged  something  over  one  hundred 
a  year,  while  the  number  during  Governor  Culbertson's  two  adminis- 
trations reached  over  eight  hundred.  He  explains  this,  however,  in 
one  of  his  messages,  by  stating  that  the  legislature  had  increased  the 
working  days  of  the  Board  of  Pardons  from  one  hundred  to  three 
hundred  days. 

Inasmuch  as  the  administration  of  Governor  Sayers  furnishes  the  last 
data,  and  indicates  in  full  the  workings  of  the  present  system,  I  quote 
from  that  as  follows  : 

During  the  years  1899,  1900,  1901,  1902,  and  part  of  January,  1903, 

the  governor  pardoned  in  felony  cases 763 

During  the  same  time  he  pardoned  in  misdemeanor  cases        .     .     .     282 

During  the  years  1899- 1900  there  were  convicted  in  all  the  courts 

for  felonies 3702 

During  the  years  1 901 -1902  there  were  convicted  in  all  the  courts 

for  felonies        3236 

Making  a  total  for  the  four  years  of 6938 

Making  number  of  felony  convictions  per  year I734 

During  the  year  1899  the  Court  of  Criminal  Appeals  affirmed  in 

felony  cases 211 

During  the  year  1900  the  Court  of  Criminal  Appeals  affirmed  in 

felony  cases 1 6g 

During  the  year  1901  the  Court  of  Criminal  Appeals  affirmed  in 

felony  cases 161 

During  the  year  1902  the  Court  of  Criminal  Appeals  affirmed  in 

felony  cases 1 54 

Making  a  total  for  the  four  years  of 695 

During  the  years    1 899-1900  the  governor  pardoned  in  affirmed 

felonies in 

During  the  years  1901  and  1902  and  part  of  January,  1903,  he  par- 
doned in  affirmed  felonies 130 

Making  a  total  of 241 

Of  these,  for  murder  in  the  first  degree,  there  were 42 

For  murder  in  the  second  degree 63 

For  assault  with  intent  to  murder 9 

For  rape 12 

For  robbery 12 

For  thefts  and  receiving  stolen  goods 43 

All  other  felonies 60 

241 

From  the  above  table  it  will  be  seen  that  for  each  of  said  four  years  the 
governor  pardoned  nearly  one  tenth  of  all  convicted  felons.    It  will  also 


2  2  AMERICAN   STATE  GOVERNMENT 

be  observed,  for  said  four  years,  that  of  those  who  prosecuted  their  cases 
to  the  court  of  last  resort  and  whose  cases  were  affirmed  there  were 
pardoned  by  the  governor  on  an  average  sixty  cases  a  year,  or  about 
one  third  of  the  affirmed  felony  cases. 

The  report  I  have  before  me  does  not  show  that  any  of  the  two  hun- 
dred and  forty-one  convicts  who  were  pardoned  during  said  four  years 
were  pardoned  for  the  purpose  merely  of  restoring  their  citizenship.  If 
these  be  estimated  at  one  fourth  of  the  entire  number  pardoned,  which 
I  think  reasonable,  it  will  leave  as  a  result  forty-five  affirmed  felons,  who 
were  the  actual  beneficiaries  of  executive  clemency  during  each  of  said 
years.  That  is,  more  than  one  fourth  of  all  felons  whose  cases  were  af- 
firmed by  the  Court  of  Criminal  Appeals  received  full  pardon,  not  only 
restoring  citizenship  but  remitting  the  penalties  against  them. 

From  this  statement  it  is  manifest  that  the  exercise  of  the  pardoning 
power  has  become  quite  an  industry  in  this  state,  constantly  augmenting 
with  increase  of  population,  and  as  that  grows  apace  our  prison  population 
must  continue  to  enhance.  Now,  with  an  estimated  population  in  the  neigh- 
borhood of  three  and  one-half  millions,  the  courts  empty  every  year  into  the 
penitentiaries  something  like  eighteen  hundred  convicts,  while  each  year 
about  that  number  is  turned  adrift  to  be  scattered  among  our  people. 

It  is,  therefore,  not  too  much  to  say  that  the  present  condition  of  things 
should  serve  to  arrest  the  attention  of  every  thoughtful  citizen ;  and  the 
subject  of  penology,  as  applied  to  our  prison  population,  and  the  relation- 
ship of  the  pardoning  power  thereto,  becomes  a  matter  of  grave  importance. 

Edmund  Burke  has  said  "  that  the  whole  function  of  government  is 
to  bring  twelve  men  into  the  jury  box,  in  order  that  they  preserve  the 
peace  of  society."  If  this  be  true,  and  under  our  system  of  civilization  we 
have  adopted,  as  a  means  of  preserving  the  peace,  the  restraining  power 
of  government  as  against  those  who  would  disturb  it,  we  should  see  to 
it  that  this  power  of  restraint  is  properly  carried  out,  and  whatever 
means  we  have  adopted  should  be  guaranteed  according  to  some  fixed 
rules,  which  are  calculated  to  enforce  the  edicts  of  the  courts,  which  are 
intended  for  the  preservation  of  society.  While  the  prerogative  of  the 
governor,  under  the  merciful  dispensation  of  the  constitution,  should  be 
preserved  in  its  integrity,  still  this  should  be  regulated  by  law,  so  as  to 
be  a  (iiiasi-judicial  power.  In  what  has  l)ccn  said  no  fault  is  to  be  found 
with  the  distinguished  gentlemen  who  have  adorned  the  governor's  chair 
(for  all  of  whom  we  entertain  the  greatest  honor  and  respect) ;  but  the 
evil  is  in  the  system  which  enables  influential  criminals  and  their  friends 
to  invoke  his  clemency  and  influence  his  judgment  upon  unworthy  sub- 
jects, by  appealing,  in  .season  and  out  of  .sea.son,  to  his  better  nature. 
Under  present  conditions,  with  so  many  problems  continually  pressing 
upon  the  executive  for  solution,  he  has  but  little  time  to  devote  to  the 
matter  of  pardons  ;  consequently  he  has  to  trust  much  to  others,  for  the 
most  part  political  friends,  whom  he  feels  he  has  a  right  to  trust.    Under 


THE  GOVERNOR 


23 


such  circumstances,  while  he  is  perfectly  aware  that  the  pardoning  power 
is  not  a  matter  of  patronage,  he  is  very  liable  to  be  unconsciously  misled 
and  deceived,  more  especially  as  his  humanity  is  appealed  to ;  and  in  his 
anxiety  not  to  disappoint  friends  or  to  appear  stolid  and  indifferent  to  the 
pleadings  of  mercy,  he  may,  for  the  time,  be  too  prone  to  forget  that 
larger  interest  which  the  public  sustain,  and  which  depends  on  the  enforce- 
ment of  law  as  administered  through  the  courts.  Under  the  stress  of 
importunity,  no  doubt,  governors  of  this  state  in  the  past,  responding  to 
a  humanitarian  sentiment,  have  used  the  pardoning  power  as  a  mere 
perquisite,  —  an  act  of  grace  on  their  part,  unconsciously,  it  is  true,  but 
still  bearing  its  baneful  effects  to  the  body  politic.  Those  of  us  who  pre- 
tend to  any  knowledge  of  the  science  of  penolog}'  or  the  philosophy  of 
punishment  know  full  well  that  when  an  influential  criminal  (by  this  is 
meant  one  who  is  able  to  employ  the  best  of  counsel)  is  brought  before 
the  courts  and  is  tried  by  a  jury  of  his  peers  and  is  convicted,  and  the 
judge  refuses  him  a  new  trial,  he  must,  as  a  general  proposition,  be  con- 
ceded to  be  guilty  of  the  offense  charged  against  him.  If  beyond  this  he 
has  prosecuted  an  appeal,  and  the  state,  notwithstanding  all  the  technical- 
ities and  knotty  intricacies  of  the  law,  succeeds  in  the  court  of  last  resort 
in  securing  an  affirmance  of  the  sentence,  he  could  scarcely  be  regarded 
afterwards  as  an  innocent  man,  the  victim  of  unfairness.  On  the  con- 
trar}%  as  a  general  rule,  we  know  that  his  sentence  is  much  lighter  than 
he  deserves.  However,  in  such  case,  the  law  has  been  put  to  a  supreme 
test,  and  is  in  a  measure  vindicated.  But  what  must  be  the  feelings  of 
that  community,  after  the  law  has  thus  triumphed,  to  see  the  felon,  before 
he  has  even  darkened  the  doors  of  the  penitentiar}',  suddenly,  without 
warning,  turned  loose  amongst  them,  through  the  pardoning  power.  No 
prosecuting  officer  in  this  state  but  knows  that  in  bringing  an  influential 
criminal  to  punishment  he  must  have  in  full  measure  the  moral  support 
of  the  community,  and  if  this  is  driven  away  or  rendered  powerless  by 
executive  interference  with  the  administration  of  the  law,  he  cannot  secure 
convictions.  After  one  such  experience  in  a  community,  when  the  district 
attorney  again  calls  on  good  citizens  to  render  him  their  moral  support, 
men  say  :  "  What  is  the  use  ?  If  he  is  convicted,  the  governor  will  pardon 
him,  and  we  cannot  afford  to  antagonize  the  defendant  and  his  friends  in 
an  effort  to  punish  him,  which  in  the  end  must  prove  futile." 

Thus,  as  it  has  often  happened,  by  the  injudicious  use  of  the  pardon- 
ing power,  the  law  is  stricken  down  in  its  own  sanctuar}'',  and  is  rendered 
powerless  for  the  protection  of  society  by  so-called  executive  clemency, 
which,  no  doubt,  is  too  often  extended  for  no  cause  that  ought  to  appeal 
to  the  executive  head  of  the  state,  who  in  this  regard  is  made  the  guard- 
ian and  protector  of  all  the  people.  This  may  be  termed  mercy  to  the 
individual,  but  it  is  an  outrage  inflicted  upon  the  people  at  large.  It  were 
far  better  if  the  executive  would  blazon  over  his  door,  "  Let  the  law 
take  its  course,  though  the  heavens  fall,"  than  that  he  should,  out  of 


24  AMERICAN  STATE  GOVERNMENT 

pseudosentiment,  listen  with  fen^or  to  the  pardon  seeker,  no  matter  how 
potent  may  be  his  influence,  unless  he  comes  with  clean  hands  and  a 
strong  and  honest  cause,  based  on  something  outside  the  matters  involved 
or  which  might  have  been  involved  in  the  trial. 

Again,  the  certainty  of  punishment  is  said  to  be,  and  no  doubt  is,  a 
strong  deterrent  to  the  commission  of  crime.  To  let  it  once  be  known 
that  after  an  influential  criminal  has  been  encompassed  in  the  toils  of  the 
law  through  the  machinery*  of  the  courts,  he  has  a  sure  refuge  in  the 
pardoning  power  of  the  executive,  then  there  is  no  law  and  no  restrain- 
ing force.  On  the  contrary,  the  courts  have  been  trodden  under  foot  and 
the  majesty'  of  the  law  has  been  insulted  ;  and  men  lose  respect  for  the 
law  which  the  courts  are  incapable  or  powerless  to  enforce.  Be  not  de- 
ceived. You  cannot  sow  the  wind  without  reaping  the  whirlwind.  No 
more  can  you  override  the  courts  without  breeding  disrespect  for  law ; 
and  in  these  times  of  trouble  nothing  should  be  done  to  invite  the  rule 
of  the  mob. 

Do  not  misunderstand  me :  I  am  not  opposed  to  the  exercise  of  the 
pardoning  power.  On  the  contrar)',  I  believe  it  is  a  high  and  sacred  pre- 
rogative, and  it  should  be  preserv^ed,  in  all  of  its  purity,  to  the  executive. 
But  I  believe  it  should  be  regulated  by  law,  and  on  terms  of  equality  to 
all  men  who  are  so  unfortunate  as  to  become  encompassed  in  its  toils ; 
not  to  the  rich,  the  influential,  alone,  but  equally  to  the  poor  and  friend- 
less. Like  some  treasured  Damascus  blade,  the  pardoning  power  should 
be  kept  sacredly  in  its  scabbard  and  should  only  be  unsheathed  on  exigent 
occasions,  for  it  is  the  sword  which  cuts  the  Gordian  knot  of  the  law  and 
renders  its  edicts  powerless. 

In  order  to  guarantee  the  eflSciency  and  usefulness  of  the  pardoning 
power,  I  beg  to  lay  down  these  propositions  for  its  administration : 

1 .  When  a  pardon  has  been  applied  for,  after  the  same  has  been  filed 
with  the  Board  of  Pardons,  due  notice  should  be  given  by  said  board  to 
some  county  official  of  the  county  where  the  party  was  convicted ;  and 
this  notice  should  also  be  published  in  some  newspaper  at  the  county 
seat  of  said  county. 

2 .  The  Board  of  Pardons  should  be  made  a  creature  of  law,  with  pre- 
scribed rules  of  procedure.  There  should  be  an  open  hearing  of  the  cases, 
with  opportunity  to  introduce  evidence  and  argument  on  both  sides.  As 
a  general  rule,  the  application  for  pardon  should  be  founded  on  something 
transpiring  .since  the  trial,  or,  if  occurring  before  the  trial  in  the  courts, 
failure  to  discover  same  must  not  have  arisen  from  want  of  diligence. 

3.  Said  board  should  not  be  authorized  to  act  as  a  court  of  review  to 
pass  upon  the  correctness,  regularity,  or  legality  of  the  proceedings  in  the 
trial  court  which  resulted  in  conviction,  but  should  confine  itself  to  a 
hearing  and  consideration  of  those  matters  only  which  would  properly  bear 
on  the  propriety  of  extending  clemency  by  the  governor  in  the  case. 

4.  It  should  also  be   jirovided   that  no   member  of  the  legislature, 


THE  GOVERNOR 


25 


penitentiary  official,  or  other   public  official  should  apply  for  a  pardon 
on  behalf  of   any  convict. 

5.  It  should  further  be  provided  that  no  person  applying  for  a  pardon 
in  favor  of  a  convict  should  receive  a  greater  fee  than  one  hundred  dol- 
lars ;  and  in  every  case  the  person  applying  should  be  required  to  file  an 
affidavit  of  the  amount  of  his  fee. 

6.  The  findings  of  said  board  should  be  filed  with  the  governor  and 
should  afford  the  basis  of  his  action  in  extending  the  pardon,  though, 
under  the  constitution,  he  might  not  be  circumscribed  by  the  reasons 
furnished.  In  all  cases  he  should  be  required  to  file  a  copy  of  the  pardon 
with  the  Secretary  of  State,  and  this  should  be  published  in  the  county  of 
the  residence  of  the  convict. 

7.  While  under  the  law  as  it  now  exists  it  seems  the  executive  may 
grant  conditional  pardons,  I  believe  there  should  be  a  definite  statute  on 
the  subject,  giving  the  governor  authority,  on  the  recommendation  of  the 
board,  either  to  grant  paroles  or  conditional  pardons  based  on  certain  reg- 
ulations prescribed  by  law.  In  regard  to  this  latter  proposition  I  would 
remark  that  a  parole  system  has  been  found  to  work  well  in  a  number 
of  other  states  where  it  has  been  tried.  And  it  occurs  to  me,  inasmuch 
as  by  our  system  of  pardons  and  discharging  convicts  whose  terms  have 
expired,  we  are  annually  turning  loose  a  population  on  the  body  politic 
more  or  less  viciously  inclined,  it  would  be  a  better  policy,  so  far  as  the 
welfare  of  the  state  is  concerned,  to  hold  some  restraining  power  upon 
this  population.  For  instance,  where  a  party  is  sent  to  the  penitentiar)' 
for  some  felony  and  his  punishment  fixed  at  five  years,  on  a  record  of 
good  behavior  the  board  might  be  permitted  to  recommend  his  conditional 
pardon  at  the  expiration  of  two  or  three  years.  He  could  thus  be  turned 
loose  on  his  good  behavior,  with  power  on  the  part  of  the  governor,  under 
certain  rules,  to  restore  him  to  the  penitentiary  if  he  violated  his  parole. 
This  at  least  would  tend  to  make  a  good  citizen  of  him,  whereas,  under 
our  present  system,  there  is  no  such  guaranty,  and  as  a  result  many  con- 
victs who  have  served  out  their  terms  or  been  pardoned  are  being  con- 
victed for  other  crimes  and  returned  to  the  penitentiary. 

If  the  above  rules  are  adopted  and  enforced,  there  will  be  more  equality 
before  the  law.  The  poor  man  will  then  have  as  good  a  chance  at  a  par- 
don as  the  rich  and  influential.  There  will  be  more  certainty  in  results 
reached,  and  consequently  more  respect  for  law.  The  governor  will  be 
protected  against  the  invasions  of  the  pardon  broker,  while  the  courts 
will  be  conserved  against  executive  encroachments.  At  the  same  time, 
under  the  parole  system,  a  premium  will  be  placed  on  the  good  conduct 
of  the  convict  when  he  has  been  turned  loose,  which  will  operate  as  a 
safeguard  to  the  community ;  and  it  will  follow  inevitably  that  there  will 
be  a  betterment  in  the  administration  of  the  criminal  law  through  the 
courts,  and  a  general  uplifting  of  society  throughout  the  length  and 
breadth  of  the  state. 


26  AMERICAN   STATE  GOVERNMENT 

THE  ENFORCEMENT  OF  LAW^ 
By  Governor  J.  W.  Folk 

In  the  state  of  Missouri  we  have  now  in  operation  what  is  called  the 
Missouri  idea,  —  the  idea  that  public  officials  should  answer  at  the  bar 
of  public  opinion  for  all  official  acts ;  that  the  man  who,  in  his  official 
life,  betrays  his  people  is  a  criminal ;  and  that  laws  are  put  upon  the 
statute  books  to  be  observed,  not  to  be  ignored. 

In  proportion  as  the  average  morality  in  a  state  is  strong,  just  to  that 
extent  is  the  state  great,  and  good  government  reigns.  Laws  that  are 
put  on  the  statute  book  must  be  put  there  for  some  reason.  Laws  that 
are  not  enforced  add  just  so  much  to  good  government  as  sores  do  to 
the  strength  of  the  human  body. 

Many  men  observe  those  laws  which  they  like  and  disregard  those  laws 
that  are  obnoxious  to  them.  The  trust  magnate  looks  with  abhorrence 
on  the  pickpocket  who  violates  the  larceny  statutes,  but  thinks  that  he 
himself  has  a  perfect  right  to  break  the  laws  against  combinations  and 
monopolies.  The  burglar  detests  the  lawbreaking  of  the  trusts,  but 
thinks  the  law  against  housebreaking  unjust  and  unfair.  The  boodler 
considers  the  law  against  bribery  as  an  interference  with  his  personal 
rights,  but  he  demands  the  rigid  enforcement  of  the  law  against  the  man 
who  steals  his  property.  The  dramshop  keeper  thinks  the  law  against 
murder  is  a  good  law,  but  the  law  requiring  his  dramshop  to  close  on 
Sunday  is  Puritanical  and  tyrannical  and  a  "  blue  "  law.  It  has  been  my 
experience  that  any  law  looks  "  blue  "  to  a  man  who  wants  to  break  it. 

So  it  goes.  Men  obey  the  laws  that  restrict  the  other  fellow,  but  laws 
regulating  their  own  conduct  they  regard  as  interfering  with  their  rights. 
If  every  man  were  allowed  to  judge  for  himself  and  to  like  those  laws 
which  are  good  and  disregard  those  which  are  bad,  as  he  sees  them,  we 
would  have  anarchy.  There  would  be  no  laws  at  all.  That  is  the  spirit 
of  the  mob  which  hangs  a  man  because  it  thinks  he  is  a  bad  man.  Yet 
if  each  individual  were  given  the  right  to  put  out  of  the  way  every  person 
that  he  thinks  is  not  a  good  citizen,  no  man's  life  would  be  safe.  The 
only  safe  test  is  to  enforce  every  law  upon  the  statute  books.  If  the  law 
is  a  bad  law,  the  remedy  is  to  repeal  it,  not  to  ignore  it. 

No  official  has  a  right  to  ignore  any  law.  It  is  not  for  him  to  say 
whether  the  law  is  good  or  bad,  but  it  is  for  him  to  enforce  it  as  he  finds 
it  on  the  books. 

A  great  deal  has  been  said  in  Missouri  in  the  last  few  weeks  about 
what  is  commonly  called  the  "lid."  Tlie  "land  of  the  lid"  means  the 
"  land  of  ihe  law."  When  jx-ople  talk  about  taking  off  the  "  lid  "  on 
Sunday,  they  mean  to  let  the  law  be  violated  with  impunity.  'I'hey  mean 
for  officials  to  violate  their  oaths  of  office  and  to  cast  away  the  obligations 

1  From  an  address  to  the  Kentucky  liar  Association,  1905. 


THE  GOVERNOR  27 

that  they  took  when  they  entered  office.  If  we  take  the  "  lid  "  off  of  the 
Sunday  law,  can  we  not  with  equal  propriety  take  the  "  lid  "  off  of  the 
larceny  statute  and  off  the  murder  statute  ?    Then  we  would  have  anarchy. 

The  greatest  danger  to  any  government  lies  in  the  fact  that  laws  that 
are  made  are  not  enforced  as  they  are  made.  There  has  been  entirely 
too  much  making  of  laws  to  please  the  moral  element  and  then  allowing 
the  laws  to  be  ignored  to  please  the  immoral  element. 

My  convictions  may  be  termed  idealistic,  but  ideas  and  ideals  are  the 
life  of  a  free  people.  We  are  made  and  governed  by  the  things  we 
cherish.  The  public  life  of  a  nation  is  but  the  reflection  of  its  private 
life.  No  government  was  ever  better  than  the  people  made  it,  nor  worse 
than  they  suffered  it  to  become.  Without  moral  vigor  material  strength 
counts  for  nothing,  resources  count  for  nothing.  The  Empire  of  Rome 
built  highways  and  constructed  splendid  cities,  while  her  civilization  was 
declining.  She  erected  barriers  against  the  barbarous  hordes  who  surged 
over  them,  while  the  strength  of  Roman  character  ebbed  away,  and  when 
that  was  gone  there  was  nothing  to  defend,  there  was  nothing  to  conquer. 

There  is  an  old  tale  of  an  Eastern  king  who  caused  a  magnificent 
palace  to  be  erected  as  the  abode  of  his  majesty  and  power.  Stone  by 
stone  the  structure  grew  and  the  heart  of  the  king  swelled  with  pride. 
One  morning  the  palace  was  found  in  ruins,  —  not  one  stone  stood  upon 
another.  "  What  great  treason  has  been  accomplished  here  ?  "  the  king 
exclaimed ;  and  a  price  was  set  upon  the  head  of  the  traitor  who  had 
destroyed  the  abode  of  majesty.  But  a  wise  man  of  the  court  said  to  the 
king :  "  Great  master,  there  was  no  treason  here.  Your  house  that  was 
great  and  mighty  has  fallen  down  because  the  builders  used  mortar 
without  sand,  and  the  work  that  they  did  has  come  to  ruin." 

So  with  the  state.  External  grandeur  counts  for  nothing  if  we  ignore 
those  vital  principles  of  morality  and  of  law  that  give  life  to  a  state.  We 
may  count  our  wealth  as  the  sands  of  the  sea  ;  the  domes  of  our  capitols 
and  the  spires  of  our  churches  may  pierce  the  sky  and  glitter  among  the 
stars,  yet  all  must  fall,  all  must  crumble  away  like  the  palace  of  the 
ancient  king,  unless  it  be  welded  together  and  strengthened  by  those 
moral  principles  that  are  the  foundation  of  an  enlightened  citizenship. 
When  corrupt  principles  are  allowed  to  influence  public  acts,  and  selfish 
considerations  deter  the  people  from  upholding  the  laws  and  from  giving 
their  best  interests  to  the  public  good,  we  are  making  mortar  without  sand. 


28  AMERICAN   STATE  GOVERNMENT 

LAW  ENFORCEMENT  IN  KENTUCKY  ^ 
By  Governor  Augustus  E.  Willson,  of  Kentucky 

The  real  test  of  strength  of  the  law-and-order  sentiment  of  a  commu- 
nity is  not  in  the  acquiescence  of  a  mild-mannered  race,  but  it  is  when 
strong,  hard-headed,  determined  people,  with  their  feelings  and  passions 
excited  so  that  disorders  result,  finally  put  down  their  revolt  and  restore 
order  and  safety.  From  the  earliest  times  our  race  has  never  been  either 
timid  or  easy-going.  It  has  always  been  strong,  determined,  earnest, 
hard-headed,  and  fearless,  and  it  has  been  the  rule  and  not  the  exception 
for  every  man  to  fight  against  what  he  believed  to  be  wrong.  There  are 
many  common  instances  of  what  any  typical  American  will  resent  with 
violence,  regardless  of  law.  He  rarely  sues  out  a  peace  warrant  against 
a  man  who  calls  him  a  liar.  Generally  our  people  have  continued  an 
even,  steady  march,  holding  strongly  to  the  law;  but  it  is  inevitable  that 
such  a  people,  from  time  to  time,  should  have  storms  of  excitement  and 
passion,  local  outbreaks,  and  times  of  lawlessness. 

The  Ku-Klux  had  a  large  membership  in  Kentucky,  and  for  a  time 
established  a  reign  of  terror,  making  many  afraid,  and  it  deprived  people 
of  their  liberty  and  of  the  protection  of  the  law;  but  Kentucky  soon  made 
it  a  felony  for  any  two  or  more  men  to  band  or  confederate  together  to 
threaten  or  intimidate  any  person  or  injure  his  property.  Later  the 
organized  tollgate  raiders  stopped  the  collection  of  tolls  and  destroyed 
large  investments  in  turnpikes.  The  feuds  in  some  counties  are  not 
strange  in  a  race  which  for  generations  kept  up  the  feuds  of  the  Orange- 
men and  Catholics,  and  the  Scotch  and  English.  But  there  is  strong 
evidence  of  the  Kentuckian's  devotion  to  law  and  order  in  the  frequency 
of  the  verdicts  of  mountain  juries,  inflicting  punishment  for  taking  life 
whenever  they  have  a  chance. 

The  tobacco  war  in  Kentucky  was  one  of  the  most  dangerous  dis- 
orders that  Kentucky  has  known.  I  shall  review  briefly  some  of  its 
principal  incidents. 

In  a  message  to  the  legislature  in  January,  1908,  I  said : 

Throughout  most  of  the  year  law  and  order,  peace  and  good  will,  have  pre- 
vailed throughout  the  commonwealth.  .  .  .  The  pleasure  which  this  peaceful 
and  prosperous  condition  brings  to  the  hearts  of  all  good  Kentuckians  makes 
it  all  the  more  painful  for  the  governor  to  speak  of  the  renewal  of  serious 
lawlessness  and  disorder  in  parts  of  the  commonwealth,  which  have  lately 
broken  our  record  of  peace  and  order,  alarmed  and  distressed  our  people, 
destroyed  millions  of  dollars  of  values  of  property,  .  .  .  injured  the  good  name 
of  our  commonwealth,  and  caused  alarm  for  the  security  of  life  and  property 
and  the  protection  of  our  liberties,  dearer  than  life  or  property,  the  news  of 
which,  carried  to  the  ends  of  the  earth,  will  drive  customers  from  our  markets, 

1  From  an  address  to  tlie  American  Bar  Association,  lyoy. 


THE  GOVERNOR  29 

turn  desirable  immigration  to  other  states,  and  plant  anew  in  the  breasts  of 
thousands  of  law-abiding  men  and  women,  who  love  peace  and  dread  lawless- 
ness and  disorder,  the  wish  to  move  to  states  where  the  law  protects  all  alike. 

We  have  severe  laws  against  trusts,  ample  to  suppress  and  punish  all  com- 
binations against  the  farmer ;  and  we  have  a  statute  which  makes  it  lawful  for 
farmers  to  pool  and  combine  against  the  buyers,  when  it  is  unlawful  for  them 
to  combine  against  the  farmer.  Our  courts  are  in  operation  to  protect  the 
rights  of  all  and  punish  infractions  of  the  antitrust  laws.  This  great  conflict 
of  interest  between  the  parties  interested  in  millions  of  dollars'  worth  of 
tobacco  has  excited  a  great  deal  of  hard  feeling,  angry  controversy,  and  per- 
sonal threats  of  parties  on  either  side  against  the  other ;  .  .  .  and  finally  these 
proceedings  have  culminated  in  raids  of  large  armed  bands  going  around  by 
night  and  destroying  the  peace  and  security  of  the  commonwealth,  and  the 
partisanship  in  these  matters  has  paralyzed  some  of  the  courts  and  officers,  and 
the  grand  juries  and  petit  juries,  so  that  the  grossest  violations  of  the  law  go 
unpunished  and  the  people's  liberties  are  destroyed,  with  little  hope  of 
redress.  .  .  . 

In  December,  1905,  in  Todd  County,  in  the  circuit-court  room,  packed  by 
excited  men,  a  lawyer  declared  that  if  they  did  violate  the  law,  they  ought  not 
to  be  punished,  and  would  not  be  prosecuted  while  he  was  commonwealth's 
attorney ;  and  the  very  next  night  one  tobacco  factory  was  burned  and  another 
set  on  fire,  and  the  following  Monday  night  a  large  band  of  armed  and  masked 
men  held  up  a  railroad  train  and  searched  it  for  tobacco  and  dynamited  a  snuff 
factory,  and  although  the  circuit  court  was  in  session,  with  a  grand  jury 
impaneled,  no  one  was  indicted  or  punished. 

Early  in  1907  men  behind  these  schemes  formed,  for  the  first  time,  a  gen- 
eral organization  in  sufficient  numbers  to  intimidate  all  not  similarly  organized, 
and  early  in  the  year  a  large  armed  band  of  masked  night  riders  made  a  very 
ugly  sample  of  the  old  country's  border  raids  on  the  town  of  Princeton.  Later 
there  were  other  disturbances,  and  finally  it  culminated  in  the  raid  on  Hopkins- 
ville,  about  two  o'clock  on  the  morning  of  December  7,  by  a  small  army  of 
several  hundred  mounted  men,  armed  and  masked,  who,  under  the  cover  of 
darkness,  without  warning,  fell  upon  the  city  and  overwhelmed  and  intimidated 
the  people  of  a  whole  city.  Their  deeds  in  Hopkinsville  are  known  of  all  men 
and  have  done  incalculable  harm  and  brought  great  shame  upon  the  common- 
wealth, but  not  one  has  yet  been  punished,  and  for  the  time  there  was  almost 
paralysis  in  business. 

A  similar  raid  of  armed  and  masked  men  was  made  on  the  large  town  of 
Russellville,  and  it  was  seized,  much  valuable  property  burned,  and  people  shot 
and  wounded,  and  a  whole  region  again  intimidated.  In  Bracken  County  there 
has  been  a  state  of  terror,  oppression,  and  intimidation  for  weeks. 

In  large  districts  the  people  are  deprived  of  the  protection  .of  the  law. 
Lawless  men  have  been  constantly  ready  to  break  out  in  several  counties,  and 
the  people  of  Kentucky  are  brought  suddenly  and  squarely  to  face  the  question, 
whether  the  laws  of  more  than  two  million  or  the  violence  of  a  few  hundred 
shall  prevail. 

There  can  be  no  doubt  of  the  final  result.  Anglo-Saxon  common  sense  and 
law  always  win  in  time.  Our  people  had  better  lose  not  only  part  of  the  value 
of  their  tobacco,  but  even  their  farms,  than  their  liberties,  and  presently  there 
will  be  a  great  reaction  in  public  opinion.    Judges  and  prosecuting  attorneys, 


30  AMERICAN   STATE  GOVERNMENT 

who  fail  in  the  critical  moment,  will  have  to  answer  for  their  neglect  of  duty, 
and  finally  everything  will  straighten  out ;  many  who  are  most  guilty  will  go  to 
the  penitentiary,  and  the  rule  of  law  and  order  will  be  resumed  everywhere. 
The  executive  will  faithfully  uphold  the  law,  but  it  is  the  people's  law  and 
its  strength  is  in  the  support  of  the  people  for  their  own  laws. 

The  message  advised  the  enactment  of  a  law  for  change  of  venue,  in 
the  investigations  of  such  crimes,  from  the  seat  of  trouble  to  other  coun- 
ties, so  that  local  violence  would  not  hinder  indictments  and  verdicts ; 
but  the  general  assembly  took  no  action. 

The  armed  men  who  raided  Hopkinsville,  after  shooting  up  the  town 
and  terrorizing  citizens,  burned  property  valued  at  $200,000.  A  great 
deal  of  ability,  time,  money,  and  work  were  surely  necessary  to  get  this 
regiment  of  men  from  different  counties  so  well  organized,  drilled,  and 
trained,  and  there  can  be  no  doubt  that  the  work  was  done  and  money 
furnished  by  the  tobacco  associations. 

One  of  the  judges  of  the  court  of  appeals  suggested  inviting  the 
tobacco  growers  and  buyers  to  a  conference  at  the  governor's  office,  to 
inquire  into  the  cause  of  the  disorders.  He  was  asked  to  write  out  an 
invitation  to  meet  with  the  governor,  and  it  was  prepared  by  him  and 
issued.  Some  two  hundred  tobacco  growers,  a  trust  representative,  and 
a  few  tobacco  buyers  attended.  The  governor,  in  opening  the  meeting, 
said  that  all  sides  should  be  heard  ;  that  he  was  neither  a  tobacco  grower 
nor  buyer,  and  that  his  only  interest  was  to  preserve  the  peace ;  that  no 
one  disputed  the  fact  nor  could  question  that  the  night  riders  were  guilty 
of  the  felony  denounced  by  the  Ku-Klux  law,  and  of  the  felonies  of 
arson  and  assault  with  intent  to  kill,  and  that  they  are  cowards  and 
criminals,  and  he  added  : 

^  I  have  invited  no  law  breaker  to  this  conference.  I  will  have  no  conference 
with  him.  For  him  there  is  the  law,  nothing  less  and  nothing  more.  The  law 
of  two  million  people  cannot  be  defied  by  five  hundred  or  five  thousand  or 
fifty  thousand  men.  It  must  be  obeyed.  It  does  not  request;  it  commands, 
and  will  enforce  obedience.  The  poorest  man,  single  and  alone,  may  demand 
the  whole  power  of  the  commonwealth,  if  necessary,  to  protect  his  constitutional 
rights.  The  law  must  be  enforced.  I  believe  the  people  will  stand  by  the  law,  for 
the  strength  of  the  law  is  the  people,  and  the  strength  of  the  people  is  the  law. 

The  justice,  a  very  popular  and  attractive  man,  spoke  of  the  law  and 
the  duty  of  the  people,  but  toward  the  end  of  his  address  said  : 

fiovcrnor  Wiilson  is  the  governor  of  the  people,  but  as  governor  he  cannot 
execute  a  single  law  without  the  pco])le.  The  greatest  power  in  the  land  is  in 
the  jury  box.  The  governor  and  all  the  commonwealth  have  not  the  power  of 
twelve  men  on  a  jury. 

You  had  better  burn  every  barn  in  the  commonwealth  than,  with  uplifted 
hand,  in  the  jury  box,  profane  your  duties  and  render  an  unjust  verdict  in  the 
name  of  the  law.   The  people  of  Kentucky  have  it  in  their  power  to  exclude  from 


THE  GOVERNOR 


31 


the  commonwealth  any  company,  concern,  or  combination  that  seeks  to  control 
prices  against  them.  In  fact,  they  have  the  power  to  make  fines  like  that  with 
which  the  Standard  Oil  Company  was  visited,  look  like  the  proverbial  thirty  cents. 

And  then  he  added  : 

I  do  not  believe  in  soldiers,  but  I  indorse  every  word  uttered  by  the  gov- 
ernor about  upholding  the  dignity  and  supremacy  of  the  law.  But  I  have 
never  seen  the  time  when  you  could  push  an  idea  through  an  Anglo-Saxon's 
head  with  a  bayonet. 

At  this,  the  suppressed  excitement  broke  out  in  wild  applause.  This 
speech  was  a  profound  surprise  to  me,  and  if  it  had  been  left  unanswered, 
there  would  have  been  an  outbreak  of  crime  and  violence  in  a  dozen 
counties  within  twenty-four  hours.  I  use  the  newspaper  report  of  my 
reply : 

The  moment  he  concluded  Governor  Willson  rose  and,  hardly  waiting  for 
the  applause  to  end,  began  a  reply  in  which  he  objected  vigorously  to  the 
statements  in  regard  to  the  soldiers  and  scored  the  growers  for  cheering  such 
sentiments.  "  Why  do  you  cheer,  when  it  is  said  that  soldiers  should  not  have 
been  sent  to  Hopkinsville .?  Do  you  recall  that  two  weeks  ago  armed  and 
masked  criminals  rode  into  Hopkinsville,  shot  into  innocent  homes,  and  burned 
up  property,  and  that  up  to  this  day  not  a  man  has  been  arrested  1  The  law 
of  the  state  must  and  will  be  supreme.  These  soldier  boys  are  Anglo-Saxon 
too.  I  am  an  Anglo-Saxon  myself,  and  so  are  you,  and  I  know  that  down  in 
your  hearts  you  want  the  law  enforced.  If  necessary,  we  will  call  on  every  one 
of  you  to  shoulder  a  musket  and  help  enforce  it,  and  you  will  comply,  and  it 
is  wrong  for  other  sentiments  to  be  expressed  and  for  the  high  judges  of  the 
state  to  advise  anything  else. 

"  Every  outbreak  decreases  the  value  of  every  acre  of  land  in  Kentucky  and 
endangers  the  liberty  of  every  man  who  is  cheering  these  utterances,  and 
unless  suppressed,  the  state  will  be  abhorred  as  a  place  unfit  to  live  in.  The 
liberty  of  the  people  is  worth  more  than  all  the  tobacco  that  ever  was  or  ever 
will  be  raised  in  Kentucky.  Sometimes  the  only  way  to  force  the  idea  of  law 
and  order  through  an  obstinate  Anglo-Saxon's  head  is  by  the  bayonet.  The 
soldiers  were  necessary  and  had  been  called  for  by  the  county  officers  and 
great  numbers  of  people  who  had  reason  for  their  fears,  and  all  the  troops 
needed  will  be  ordered  on  duty  whenever  and  wherever  needed,  if  I  have  to 
call  out  the  reserve  and  bankrupt  the  state  treasury.  When  an  Anglo-Saxon 
takes  up  arms  against  the  people's  law,  the  arms  of  the  law  will  put  him  down. 
Violence  and  intimidation,  night  riders  and  so-called  '  peaceful  armies  '  will 
be  suppressed  relentlessly,  and  all  the  power  of  the  state  government  will  be 
used  to  do  it." 

The  representative  of  the  tobacco  company,  the  chief  buyer,  made  a 
short  address,  which  gave  promise  of  an  understanding  being  reached 
between  the  rival  interests,  and  committees  were  appointed,  and  the 
negotiations  brought  on  by  this  meeting  finally  ended  in  a  settlement  in 
which  the  tobacco  trust  and  the  growers'  pools  —  the  two  trusts  —  agreed 
on  a  very  good  price  for  the  pooled  tobacco,  to  their  mutual  satisfaction. 


32  AMERICAN   STATE  GOVERNMENT 

Such  a  sale  of  the  pooled  tobacco  would,  in  my  judgment,  never  have 
been  made  but  for  the  conference.  There  would  have  been  strife, 
bitterness,  and  violence,  which  would  have  ended  all  chance  of  agreement 
upon  good  prices.  But  the  result  has  not  helped  the  cause  of  liberty  or 
law  and  order;  indeed,  it  has  strengthened  the  hands  of  the  two  com- 
binations, the  tobacco  trust  and  the  farmers'  pool,  and  the  independent 
buyers  and  the  independent  growers,  who  had  not  already  sold,  have  the 
"  bag  to  hold.  "    The  conference  thanked  the  governor,  and 

Resolved,  further,  That  this  meeting  of  Kentuckians  heartily  indorses  the 
purpose  of  Governor  Willson  to  discover  and  punish  the  perpetrators  of  the 
recent  outrages  in  western  Kentucky  and  especially  at  Hopkinsville ;  and  we 
do  with  all  possible  earnestness  condemn  those  and  similar  outrages  .  .  .  and 
hereby  pledge  to  Governor  Willson  every  assistance  at  our  command,  including 
the  power  and  influence  of  the  organizations  which  we  respectively  here 
represent,  in  his  efforts  not  only  to  restore  but  to  permanendy  maintain  peace 
and  order  throughout  Kentucky. 

This  resolution  of  the  meeting,  composed  almost  wholly  of  tobacco 
farmers,  following  so  quickly  the  rebuke  of  the  fierce  applause  of  the 
speech  against  the  use  of  troops  to  put  down  the  armed  attacks  on  the 
peaceful  people,  was  very  gratifying  proof  of  the  justice  of  the  governor's 
confidence  in  the  devotion  of  the  people  of  Kentucky  to  the  law. 

Not  less  effective  than  the  troops  was  the  organization  in  several  coun- 
ties of  law-and-order  leagues,  and  finally  a  state  league,  enrolling  a  very 
large  number  of  fearless  and  detemiincd  men,  who  were  organized  into 
companies,  and  money  was  subscribed  to  pay  all  of  the  expenses.  These 
leagues  helped  patrol  the  roads  and  guarded  their  neighbors.  There 
were  also  many  instances  of  individual  heroic  defense  of  homes  and 
property  by  men  and  even  by  women  against  the  night  riders.  Yox 
months  hundreds  of  homes  were  guarded  by  their  families,  who  kept 
night  watches  under  arms.  The  dangers  were  often  as  great  and  the 
anxieties  as  thrilling  as  those  which  the  pioneers  had  to  endure  from 
the  Indians. 

Then  followed  many  acts  of  oppression :  plant-bed  scraping,  barn 
burning,  burning  railroad  stations,  threatening,  w^hipping  and  beating 
white  citizens,  and  destroying  property  in  different  parts  of  the  state  by 
organized  bands.  On  the  apjDlication  of  citizens  who  were  in  danger, 
small  detachments  of  soldiers  were  sent  to  several  counties,  and  ship- 
ments of  state  guns  and  ammunition  were  made  to  responsible  parties  in 
a  great  many  places,  and  detachments  were  on  duty  with  Catling  guns  at 
Hopkinsville  and  Lexington.  Five  hundred  dollars,  the  largest  reward 
authorized,  was  offered  for  the  conviction  of  each  of  the  men  guilty  of 
the  raids  and  intimidation  in  all  of  the  troubled  counties,  and  to  every 
man  who  should  give  advance  information  of  contemplated  raids. 

A  succession  of  outrages,  forcible  seizures  of  tobacco,  and  whipping 
more   than   fifty  white  men  went  on  for  months  in   IJracken  County. 


THE  GOVERNOR 


33 


Tobacco  buyers  were  whipped  by  night  riders  in  Lyon  County  at  the 
town  of  Kuttawa,  and  many  people  sold  their  property  and  left  the  state  ; 
the  newspapers  reported  that  fifty  moved  to  Texas  in  a  single  day.  The 
disorders  in  western  Kentucky  continued,  and  further  detachments  of 
militia  were  sent  there. 

Two  hundred  masked  men  seized  on  the  town  of  Dycusburg.  Two 
men  and  a  woman  were  beaten  and  a  tobacco  warehouse  and  a  distillery 
burned.  This  outrage  was  very  brutal  in  its  character.  The  raiders  left 
their  horses  at  the  edge  of  the  town,  and,  after  cutting  the  telephone 
wires,  began  to  shoot  up  the  town.  It  is  estimated  that  about  two 
thousand  shots  were  fired.  The  first  victim  was  unmercifully  whipped 
with  thorn  switches.  They  then  fired  into  a  family  home,  dragged  the 
owner  out  and  whipped  him  until  he  begged  for  mercy,  and  when  his 
wife  tried  to  rescue  him,  she  was  beaten. 

In  Nicholas  County,  Hiram  Hedges,  a  poor  farmer,  was  called  to  his 
door  and  murdered  in  cold  blood  before  the  eyes  of  his  wife  and  children, 
by  a  band  of  night  riders.  Hedges,  before  he  was  shot,  threw  himself 
on  the  mercy  of  the  men  and  promised  to  comply  with  their  wishes  and 
dig  up  his  plant  beds  if  they  would  leave  his  home,  but  they  paid  no 
attention  and  shot  him  to  death.  Two  men  identified  by  the  widow  were 
arrested  and  released  on  examination  by  a  county  judge. 

Farmers  all  over  the  state  were  warned  not  to  raise  a  crop  in  igo8. 
At  Paducah  the  circuit  judge,  who  acted  with  great  courage  and  vigor 
throughout  all  of  these  troubled  times  and  impaneled  a  grand  jury  to 
investigate  the  raids  in  Marshall  County,  received  long-distance  telephone 
threats  of  violence. 

A  company  of  mounted  infantry  was  put  on  duty  as  a  night  patrol  of 
the  roads  in  the  counties  of  Mason,  Bracken,  Harrison,  Grant,  and  Owen. 

There  is  not  time  to  detail  the  many  wrongs  done.  Through  all  the 
story  of  violence  it  was  plain  that  every  crime  was  part  of  a  plan  to 
make  all  tobacco  growers  afraid  not  to  pledge  their  crops  to  the  association. 

It  is  of  some  interest  to  record  the  night-rider  oath,  which  was  in  these 
words : 

I, ,  in  the  presence  of  Almighty  God  and  these  witnesses,  do  solemnly 

promise  and  swear  to  become  a  member  of  this  order.  If  I  should  betray 
this  order  in  any  way  by  signs,  acts,  or  writing,  or  cause  to  be  revealed 
the  secrets  of  this  order,  I  shall  have  to  submit  to  the  penalty  which  is  put 
upon  me,  which  is  death.  I  solemnly  promise  and  swear  that  I  will  obey  all 
orders  which  may  be  given  me,  and  I  will  go  at  any  time  they  may  call  upon 
me  unless  I  or  my  family  are  sick. 

A  member  of  the  band  testified  that  he  went  with  the  night  riders  to 
the  homes  of  various  men  who  were  forced  to  come  out  and  take  this 
oath  of  membership  on  their  knees. 

During  these  occurrences  the  governor  was  receiving  from  men  and 
women  all  over  the  state  the  most  earnest  and  touching  appeals  for  help 


34  AMERICAN  STATE  GOVERNMENT 

and  protection  against  the  night-rider  outrages,  threats,  and  crimes.    I 
quote  from  a  letter  from  one  lady,  which  is  a  fair  sample  of  many : 

But  I  feel  like  this  terrible  mental  strain  on  account  of  threats  and  also 
actions  from  what  is  called  night  riders,  I  cannot  endure  much  longer.  When 
we  lie  down  at  night  we  do  not  know  whether  it  is  for  the  last  time,  or  whether 
all  our  property  will  be  destroyed  before  morning.  My  husband  has  had  a  written 
notice  that  his  house  and  barns  would  be  burned  and  his  hide  split,  and  last 
Friday  night  his  old  blind  mother,  eighty-four  years  old,  had  all  of  her  tobacco 
destroyed  by  them  ;  and  last  summer  they  would  not  let  her  wheat  be  threshed, 
and  notified  the  man  that  did  thresh  it,  that  they  would  blow  up  his  machine 
with  dynamite,  if  he  went  into  her  field,  until  it  was  nearly  ruined.  The  torture 
that  the  poor  country  people  are  suffering  is  worse  than  death.  What  can  you 
do  for  us  ?  .  .  .  .  It  seems  to  me  half  the  people  of  Kentucky  will  be  crazy 
before  July,  and  so  much  property  destroyed. 

The  governor  is,  by  law,  authorized  only  to  employ  two  detectives  and 
to  expend  not  exceeding  $3000  in  any  year  for  investigations ;  this  was 
entirely  inadequate  for  investigating  a  state-wide  conspiracy  like  this. 
A  very  serious  hindrance  to  the  state  administration  in  putting  down 
these  disorders  was  due  to  the  fact  that  some  members  of  the  general 
assembly  were  in  sympathy  with  lawlessness.  There  was  an  opposition 
majority  in  both  houses,  and  part  of  the  general  assembly  was  opposed 
to  law-and-order  measures. 

During  all  of  this  time  it  had  been  impossible,  generally,  to  secure 
any  indictment  by  a  grand  jury  against  the  night  riders  in  any  but  two  or 
three  of  the  counties,  where  a  brave  circuit  judge  used  all  the  power  of 
his  great  office  to  suppress  lawlessness,  as  in  Calloway,  where  fifty-two 
were  indicted,  while  other  officers,  professing  virtuous  sentiments,  con- 
nived at  packing  the  juries  with  night  riders,  so  that  the  trials  in  some 
courts,  where  men  were  plainly  guilty,  were  farces. 

For  nearly  a  year  the  militia  —  mounted  infantry  —  patrolled  large 
districts  of  the  state.  It  was  hard  service,  —  detachments  riding  long 
hard  rides  every  night,  through  the  winter  and  inclement  spring,  lonely 
all-night  patrols  through  hostile  neighborhoods.  And  then  the  state  law- 
and-order  league,  by  resolution,  demanded  that  the  governor  should  call 
out  the  whole  militia  force  of  the  state  and  post  men  in  every  county, 
and  reproached  him  for  not  taking  mort  active  measures. 

The  wliole  force  of  militiamen  on  guard  in  the  slate  never  exceeded 
three  hundred  soldiers,  whose  patrols  covered  many  counties  and  many 
thousands  of  square  miles  and  thousands  of  miles  of  roads.  They  were 
at  all  times  under  strict  orders  not  to  parley  or  compromise  with  the 
lawless  in  any  way,  but  to  attack  them  instantly  wherever  they  found 
them  in  masked  bands,  taking  every  care  to  be  certain  that  they  were 
night  riders,  so  that  no  innocent  persons  should  be  attacked.  The  lawless 
men,  ordinarily  brave  enough  to  (ight  their  numbers  or  more  than  their 
numbers,  became  panic-stricken  at  the  idea  of  being  killed  in  masks,  and, 


THE  GOVERNOR 


35 


even  in  large  bodies,  they  would  not  venture  to  ride  the  roads  patrolled 
by  a  squad  of  only  two  or  three  militiamen. 

Nothing  could  more  forcibly  illustrate  the  power  of  the  sentiment  of 
the  people  for  law  and  order  than  the  panic  which  overcame  the  lawless 
bands  in  the  face  of  the  power  of  the  state,  when  three  hundred  militia- 
men absolutely  held  back  and  drove  to  cover  this  great  criminal  organiza- 
tion of  ten  thousand  sworn  night  riders,  with  their  many  sympathizers. 
The  night  riders  claimed  that  they  had  thirty-two  thousand  members,  but 
the  better  opinion  is  that  there  were  from  eight  to  ten  thousand. 

To  make  the  policy  of  the  state  authorities  known,  copies  of  letters 
written  by  the  governor  to  citizens  who  appealed  for  protection,  were 
published,  from  which  I  give  a  few  extracts : 

I  am  sure  that  in  time  the  people  will  realize  the  enormous  loss  they  have 
sustained  in  money,  property  values,  liberty,  and  reputation,  and  that  presently 
the  pendulum  will  swing  back,  with  resistless  power  for  the  punishment  of  the 
criminals.  ...  I  have  no  idea  whatever  of  coming  to  Hopkinsville  to  have  a 
conference.  ...  I  cannot  understand  how  they  can  think  that  it  would  be 
even  sensible,  much  less  necessary,  for  the  state  to  negotiate  with  them  as  if 
they  were  the  government  of  another  state.  The  laws  are  in  full  force  to  pro- 
tect them.  The  courts  are  open  to  them  just  as  to  others.  The  state  is  not 
asking  any  conference  with  these  men  —  it  has  no  more  interest  in  them  than 
other  individuals.  It  will  not  think  of  conferring  with  them  as  if  they  were 
elected  representatives.  There  will  not  be  a  thread  of  compromise  with  these 
flagrant  crimes.  No  matter  how  long  it  takes,  the  state,  with  all  its  power,  is 
ever  pressing  forward  to  the  punishment  of  the  guilty.  .  .  .  The  trials  may  be 
temporarily  delayed,  some  miscarry,  but  the  law  will  be  enforced  and  the  crim- 
inals will  be  punished  without  any  sort  of  compromise ;  and  unless  all  violence 
ends  at  once  and  peace  is  fully  restored,  there  will  be  no  earthly  possibility  of 
any  successful  appeal  to  the  governor  to  make  any  allowances  for  the  crimes. 
They  have  injured  the  property  of  the  people;  they  have  destroyed  public 
confidence  and  hurt  the  good  name  of  the  state  a  hundredfold  more  than  a 
dozen  murders  committed  without  combination.  No  man  could  do  his  duty 
nor  be  faithful  to  the  constitution  and  the  liberties  of  the  people  who  would 
entertain  any  possibility  of  mercy  for  organized  crime,  and  there  must  be  no 
possibility  of  mistake  or  doubt  on  this  subject,  and  there  need  be  no  doubt  or 
fear  in  the  minds  of  the  law-abiding  people  of  the  final  result.  When  brought 
to  face  the  failure  of  the  purpose  for  which  the  crimes  were  instigated,  it  will 
not  be  long  until  there  will  be  such  public  feeling  for  the  prosecution  that 
there  will  be  no  difficulty  in  enforcing  the  law,  no  chance  for  any  public  ofl!icial, 
who  has  failed  to  do  his  duty,  and  no  chance  for  any  man  who  planned,  organ- 
ized, or  took  part  in  the  crimes,  and  it  will  not  be  long  to  wait. 

Another  letter  to  a  law-and-order  organizer : 

...  I  believe  in  organization,  but  there  should  be  no  use  of  the  power  of 
numbers  to  rule  by  force  or  in  any  way  except  by  law,  either  members  or  those 
not  members.  The  rules  and  contracts  must  be  enforced  by  law  and  not  in 
any  case  by  private  violence,  and  it  will  not  be  long  until  all  men  of  ordinary 


36  AMERICAN  STATE  GOVERNMENT 

sense  will  see  that  one  cannot  win  customers  by  threats ;  and  several  counties 
have  suffered  brutal  ruffianism  quite  as  dangerous  as  the  Indian  ravages  were 
to  our  pioneer  fathers,  so  that  nobody  will  wish  to  move  into  these  counties, 
and  every  man  who  loves  his  liberty  will  wish  to  move  out.  Everybody,  a  few 
days  ago,  was  safe  and  happy,  but  everybody  is  now  unsafe  and  unhappy,  and 
not  a  particle  of  good  —  nothing  but  harm  —  has  come  of  it  all,  and  presently  the 
people  will  turn  and  punish  the  Ku-Klux  and  there  will  be  no  mercy  for  them. 

In  a  letter  to  Bracken  County : 

I  have  been  greatly  surprised  at  the  continued  reports  of  flagrant,  open  Ku- 
Kluxism  in  Bracken  County.  It  seems  that  hundreds  of  men  in  so-called 
"  peaceful  armies,"  marching  in  large  numbers,  have  visited  people  of  their 
county,  and  even  in  Mason  County,  to  compel  them  to  give  up  their  liberty 
and  to  obey  men  who  have  no  right  to  force  their  will  upon  their  neighbors. 

The  word  "  peaceful  army  "  is  an  insult  to  every  man's  intelligence.  Every 
marching  band  is  guilty  of  felony  under  the  Ku-Klu.x  Act  and  subject  to 
indictment,  conviction,  and  sentence  to  the  penitentiary,  and  I  hope  there 
will  be  no  doubt  in  the  mind  of  one  of  them  that,  no  matter  what  temporary 
encouragement  he  may  have  had,  the  loss  of  liberties  and  rights  will  arouse  the 
people  to  uphold  their  laws,  drive  the  modern  savages  out,  and  demand  their 
punishment. 

I  glory  in  the  noble  courage  of  the  woman  who  planted  the  flag,  the  emblem 
of  our  liberties,  at  her  door  when  the  mob  rode  up  to  her  father's  home.  I 
honor  the  old  Irish  woman  who  defied  them  all.  I  honor  the  man  who,  with 
loaded  shotgun,  commanded  them  to  turn  back  from  his  front  door.  I  wish 
every  man  to  be  patient  and  never  hurt  another  until  forced  to.  but  I  shall 
have  a  special  desire  to  protect  the  man  who  defends  his  liberty,  his  property, 
and  his  life  at  any  risk  from  these  "  peaceful  armies  "  of  Ku-Klux. 

Before  the  troops  went  on  duty  there  were  thousands  of  Kentucky 
homes  in  which  the  men,  women,  and  children  never  went  to  bed  without 
fear  of  death,  danger,  and  arson ;  yet  in  a  few  months  a  handful  of 
soldiers  suppressed  the  whole  conspiracy,  drove  the  leaders  into  hiding, 
and  put  an  end  to  the  rule  of  fear.  The  total  expense  of  the  militia  for 
all  purposes  during  these  months,  beginning  in  December,  1907,  and 
ending  this  year,  has  been  about  $225,000,  of  which  some  $200,000  was 
made  directly  necessary  by  the  night  riders. 

Several  night  riders  were  killed,  but  the  fear  of  detection  of  the  others 
caused  desperate  efforts,  in  every  case,  to  conceal  the  fact  of  each  death. 
Reports  show  that  several  committed  suicide  on  account  of  the  crimes. 

A  proclamation  issued  by  the  governor  called  upon  the  people  to 
defend  themselves,  and  told  them  that  if  they  did,  they  would  need  no 
lawyer  if  they  hurt  anybody  in  defending  their  homes.  This  promise  has 
been  kept.  The  night  riders  never  risked  any  chance  of  an  engagement 
with  the  troops.  'I'hc  outrages  were  planned  and  executed  in  secret  and 
under  cover  of  darkness.  No  troops  were  ever  sent  except  under  the 
law  authorizing  the  governor  to  order  them  in  case  of  danger  to  life  or 
property,  but   they  were   always   sent  when   ajiplied   for  by  the  public 


THE  GOVERNOR 


37 


officers,  and  whenever  and  wherever  they  were  needed ;  and,  in  many 
cases,  where  local  officers  were  in  sympathy  with  the  night  riders,  they 
were  sent  by  the  governor's  order,  without  application,  when  it  was  cer- 
tain that  the  danger  existed. 

The  state  league  resolution  for  calling  out  the  whole  state  militia  was 
answered  by  saying  that  under  the  law  the  governor  could  not  send  any 
troops  without  information  showing  a  necessity  for  them. 

Under  strict  orders,  there  was  no  news  or  information  given  of  the 
movements  of  the  troops.  They  carried  on  their  patrols  in  such  a  way 
that  the  night  riders  never  knew  where  they  might  turn  up  or  intercept 
them.  The  people's  soldiers,  on  their  part,  conducted  themselves  splen- 
didly under  great  hardships,  with  patience,  courage,  sound  common  sense, 
and  unfaltering  loyalty,  and  became  seasoned  soldiers  fit  for  any  duty. 
There  was  never  any  complaint  of  their  behavior  or  performance  of  duty. 

Prominent  members  of  the  Dark  Tobacco  Association  called  upon  the 
governor  and  offered  to  have  the  lawlessness  stopped  if  the  governor 
would  withdraw  the  troops  and  stop  the  investigations,  but  they  were 
told  bluntly  that  no  parley  would  be  held  with  them  and  no  compromise 
made. 

The  highest  reward  permitted  by  Kentucky  law  was  offered  for 
information  that  would  lead  to  the  apprehension  and  punishment  of 
every  man  guilty  of  cooperation  with  the  night  riders  or  of  banding  or 
confederating  together  to  injure  or  intimidate  others,  and  for  advance 
information  of  intended  riots ;  these  rewards  would  aggregate  hundreds 
of  thousands  of  dollars  if  the  guilty  were  exposed  and  successfully 
prosecuted. 

There  has  been  no  consideration  of  political  future  or  popularity  nor 
of  the  wishes  of  the  lawless,  but  there  has  been  a  stern,  relentless,  and 
unwavering  purpose  and  an  unceasing  effort  to  suppress  lawlessness  and 
punish  crime.  It  rests  with  the  people  of  the  commonwealth  and  their 
courts  to  return  the  indictments  and  punish  the  guilty.  There  will  be  no 
pardon  for  this  offense. 

This  plan  of  action  has  been  denounced  with  every  form  of  abuse  and 
falsehood.  Many  county  newspapers  are  under  the  influence  of  the 
night  riders,  and  here  and  there  a  judge  or  state's  attorney,  elected  by 
the  people  and  not  subject  to  removal  or  correction  by  the  governor, 
has  faltered  in  his  duty,  and  in  some  instances  s}mpathized  openly  with 
the  criminals.  But  our  people  are  coming  to  their  own  again,  and  there 
will  be  prosecutions  and  convictions  for  the  wrongs  suffered  in  so  great 
a  territor)^  and  for  so  many  weary  months.  I  do  not  know  any  state 
to-day  where  the  sentiment  for  law  and  order  is  more  universal,  earnest, 
and  uncompromising  than  in  Kentucky.  We  have  the  straightest  typical 
Americans  in  all  this  land,  and  the  best  law-and-order  people  in  the  world. 

\Yhi\e  I  have  never  faltered  for  an  instant  in  the  firm  faith  in  our 
people,  I  may  confess  strong  gratification  that  this  faith  has  already 


38  AMERICAN  STATE  GOVERNMENT 

proved  to  be  just,  and  that  the  policy  of  law  and  order  to-day  has  the 
cordial  approval  of  the  people  of  Kentucky.  I  deem  myself  most  fortu- 
nate indeed  that  it  has  been  my  lot  to  be  the  governor  of  Kentucky  in 
these  times  of  trouble  and  anxiety,  and  to  have  the  faith  I  have  had  in 
our  American  people.  I  am  entirely  safe  in  saying  that  there  is  no  issue 
in  Kentucky  upon  the  question  of  law  and  order ;  that  the  sentiment  of 
the  state  is  strong,  earnest,  faithful,  and  unyielding  in  favor  of  upholding 
the  law,  without  temporizing  with  any  form  of  defiance  of  it. 

No  politics  were,  generally  speaking,  injected  into  this  contest.  In 
some  counties  the  night  riders  tried  to  make  it  a  political  matter  and 
were  actively  helped  by  some  politicians,  but  the  attempt  has  reacted. 
One  circuit  judge,  who  made  righteous  law-and-order  charges  to  grand 
juries,  but  made  a  farce  of  the  selection  of  men  for  juries  and  of  the 
trials  of  the  night  riders  in  his  court,  was  defeated  for  the  nomination 
in  his  own  party  convention  in  the  dark-tobacco  district.  The  Tobacco 
Association  has  publicly  denounced  lawlessness,  and  no  candidate  for 
office  dares  make  any  public  claim  or  even  admission  that  he  was  a  night 
rider  or  a  night-rider  sympathizer. 

So  far  only  two  men,  I  believe,  have  been  convicted  of  night-rider 
crimes,  each  receiving  a  sentence  of  only  one  year,  but  victims  of  these 
outrages  have  recovered  in  actions  in  the  federal  court  large  sums  in 
damages. 

Except  for  the  first  raid  at  Princeton,  in  which  tobacco-trust  property 
was  destroyed,  and  except  one  trust  building  which  caught  fire  from  an 
independent  factory,  there  has  been  no  injury  to  any  of  the  trust's 
property  or  employees.  It  has  never  asked  any  protection,  and  all  of  the 
efforts  of  the  night  riders  and  the  different  tobacco  associations  have  been 
directed  against  the  independent  farmers  who  would  not  join  the  farm- 
ers' pool  and  put  their  crop  into  its  hands,  and  against  the  independent 
buyers  and  factories,  who  would  not  yield  to  the  trust.  At  the  end  of  all 
the  trouble  the  two  trusts,  the  tobacco  trust  and  the  association  trust, 
readily  agreed  with  each  other,  to  their  very  great  mutual  gain  and  profit, 
and  the  trust  got  all  of  the  pooled  tobacco  that  it  wanted,  having  the 
first  choice  and  leaving  the  independent  factories  and  buyers  to  get  what 
it  did  not  want,  while  those  unfortunate  people  who  cherished  the  liberty 
and  the  right  of  each  man  to  do  what  he  pleases  with  his  own  so  long 
as  he  does  not  interfere  with  like  rights  in  others,  were  ground  fine 
between  them. 

This  tobacco  trouble  is  as  old  as  the  growth  of  tobacco.  Fiske  shows 
that  just  such  troubles  existed  in  Virginia  in  early  colonial  times,  and 
they  are  not  new  to  Kentucky,  though  tlicy  have  never  before  resulted 
in  such  widespread  crime  and  intimidation. 

'J'he  people  of  Kentucky  owe  a  great  debt  to  the  circuit  judges,  county 
judges,  commonwealth's  and  county  altf)rneys,  who  ne\x'r  faltered  even 
when  the  storm  was  darkest,  but  kept  the  faith  and  fulfilled  their  duties 


THE  GOVERNOR 


39 


regardless  of  personal  safety  or  political  chances.  These  men,  with 
whatever  party  they  may  affiliate,  have  shown  their  title  to  the  confidence 
of  their  people.  But  more  than  all,  I  render  a  tribute  of  affectionate 
respect  to  this  American  people,  with  its  inherited,  instinctive  love  of  law 
and  order,  its  fidelity  to  honor  and  conscience  and  its  sturdy  defense  of 
its  rights  and  liberties. 

May  I  not  justly  claim  that  this  result  in  a  truly  representative  straight 
American  state  is  a  conclusive  demonstration,  not  only  to  Kentucky  but 
to  every  other  state  and  community  controlled  by  our  race,  that  its 
officers  may  always  trust  unhesitatingly  to  the  ruling  instinct,  nay,  even 
passion  of  our  race,  to  uphold  the  law,  even  when,  in  a  time  of  the 
greatest  excitement  and  most  deep-seated  prejudice,  disorder  temporarily 
gets  the  upper  hand.  Woe  to  the  officer  or  politician  who  temporizes  or 
parleys  with  crime  and  violence  under  any  circumstances ;  almost 
instantly  the  rebuke  will  come  and  the  weakness  will  be  punished. 

The  disorders  in  Kentucky,  under  the  secret  operation  of  the  men 
who  had  a  money  interest  in  continuing  their  unlawful  and  criminal 
practices,  lasted  for  nearly  a  year,  but  finally  the  reign  of  fear  in  thou- 
sands of  homes  has  come  to  an  end ;  and  I  trust  in  our  people  and 
believe  that  there  can  be  no  serious  renewal  of  the  troubles,  although 
there  is  a  possibility  of  detached  local  disturbances,  inspired  by  the  men 
who  gained  money  and  power  through  their  leadership  in  the  tobacco 
organization  and  the  night-rider  conspiracy  against  the  people  and  their 
law.  The  murderers  of  Hiram  Hedges  are  yet  at  large.  The  night 
riders  are  yet  unpunished,  but  no  statute  of  limitation  protects  them, 
and  over  all  of  them  hangs  the  sword  of  justice  of  the  people's  law. 
Soon,  I  hope  and  believe,  grand  juries  will  indict  and  petit  juries  will 
convict,  and  the  people  will  punish  the  criminals. 

The  measure  of  power  or  force  in  anything  is  always  calculated  by 
the  resistance  which  it  overcomes.  A  mere  trivial  power  may  whirl  an 
electric  fan  several  hundred  revolutions  a  minute  or  a  spindle  three 
thousand  times  in  a  minute.  That  is  because  the  resistance  is  slight. 
You  may  take  a  colony  of  Micmac  Indians,  one  of  the  most  harmless 
people  on  earth ;  they  break  no  laws,  but  will  you  say  of  such  a  people 
that  there  is  among  them  a  power  in  the  sentiment  for  law  and  order  ? 
There  is  simply  a  lack  of  inclination,  a  lack  of  independence,  to  do 
anything  except  in  the  usual  way.  This  American  people  comes  honestly 
by  a  sturdy  independence  and  a  strong  temper  and  sometimes  a  hard- 
headed  violence,  but  side  by  side  with  all  that,  goes  a  wonderful  pas- 
sion for  law  and  order  that  can  cure  any  disorder  that  may  spring  up  in 
its  midst. 

I  maintain  that  I  have  proved  that  in  this  typical  American  state — with 
a  people  almost  all  of  whom  were  born  on  this  soil  of  the  old  British- 
Scotch-English  and  Irish  stock,  with  all  its  hard-headedness,  its  fearless- 
ness, and  its  daring  not  deteriorated,  but  as  strong  to-day  as  it  was  in  the 


40  AMERICAN  STATE  GOVERNMENT 

pioneer  ancestors  that  came  down  into  the  dark  and  bloody  ground  —  the 
best  evidence  of  the  strength  of  the  law-and-order  sentiment  is  when  a 
people  like  that  puts  down  just  as  strong  people  who,  under  temporary 
excitement  and  passion  and  prejudice,  break  the  law.  It  is  the  resistance 
that  measures  the  strength  of  the  power,  and,  measured  by  that,  all  these 
instances  I  have  told  you  of  resistance  to  law  and  order  are  only  so 
many  conclusive  evidences  of  the  overwhelming  power  of  the  sentiment 
of  the  people  to  put  down  lawlessness  and  protect  liberty,  with  their  lives 
if  need  be. 

Now  I  say  to  you  that  in  every  state  ruled  by  our  race  the  sentiment  of 
law  and  order,  just  as  it  is  in  this  typical  state  of  Kentucky,  is  the 
strongest  sentiment  in  the  hearts  of  our  people,  and  it  will  surely  put 
down  all  lawlessness  and  disorder.  This  country  will  never  degenerate  into 
anarchy,  but  will  put  it  down  in  whatever  form  it  is  manifested,  and 
will  bring  the  criminals  to  justice ;  we  shall  do  it  in  Kentucky  and  lead 
the  way  for  all  the  rest  of  the  states. 


II 

THE   LEGISLATURE 

OUR  STATE  LEGISLATURES^ 
By  Samuel  P.  Orth 

Does  a  fiendish  necromancer  transform  a  John  into  a  Judas  when  he 
enters  the  halls  of  legislation,  or  is  it  impossible  to  elect  able  and  honor- 
able men  to  make  our  laws  ?  Popular  impression  seems  to  aflfirm  both 
horns  of  this  deplorable  dilemma.  We  have  grown  to  distrust  our  state 
legislatures.  Their  convening  is  not  hailed  with  joy,  and  a  universal  sigh 
of  relief  follows  their  adjournment.  The  utterances  of  the  press,  the 
opinions  of  publicists  and  scholars,  and  the  sentiments  of  the  street  and 
the  market  place  are  quite  at  one  in  their  denunciation  of  the  legislature. 
Our  representatives  are  the  subject  of  jest  and  ridicule,  of  anger  and 
fear.  This  is  a  serious  matter.  When  a  democracy  loses  faith  in  its 
lawmakers,  respect  for  law  must  soon  fade  away,  and  with  it  vanishes 
self-government. 

Has  it  never  occurred  to  us  that  these  gibes  and  thrusts,  cartoons  and 
editorials,  sermons  and  sentiments,  ought  to  be  directed  against  ourselves 
and  not  against  our  servants  ? 

I  am  not  writing  an  apology  for  legislative  excesses.  The  man  who 
thinks  a  legislature  infallible  harbors  an  insane  delusion  ;  the  man  who 
thinks  it  utterly  depraved  allows  his  malevolence  to  dispel  his  reason. 

A  careful  study  of  and  long  familiarity  with  state  legislatures,  with 
their  personnel,  the  conditions  under  which  they  were  elected,  and  the 
environments  in  which  they  performed  their  tasks,  leads  me  to  believe 
that  some  of  our  criticism  is  misplaced,  and  some  of  our  zeal  and  activity 
displayed  at  the  wrong  time.  There  are  faults,  gross  and  glaring,  in  the 
conduct  of  state  legislatures.  There  are  also  faults,  as  gross  and  glaring 
and  less  excusable,  in  the  conduct  of  the  constituencies  which  selected 
the  legislators.  These  must  be  studied  together,  that  the  truth  may  be 
learned  and  the  faults  remedied. 

The  nature  of  the  problem  and  the  scarcity  of  published  data  render 
the  scientific  study  of  the  legislative  situation  delicate  and  difficult.  I 
have  here  attempted  a  fragment  of  such  an  inquiry.  For  this  purpose 
I  have  taken  four  legislatures,  of  states  whence  biographic  data  were 

.     .  '^  Ailaniic  Monthly,  Hec&mher,  i()o^.    Reproduced  by  permission. 

41 


42  AMERICAN   STATE  GOVERNMENT 

forthcoming.  It  is  of  course  vain  to  seek  in  a  handful  of  biographic  statis- 
tics the  special  fitness  of  a  given  class  of  men  for  legislative  duty.  Yet  the 
average  human  being  is  influenced  most  potently  by  education,  by  occu- 
pation, and  by  experience.  Knowing  these,  we  can  at  least  roughly  gauge 
his  fitness  for  the  ordinary  duties  of  public  life.  Genius,  indeed,  is  not 
amenable  to  statistical  diagnosis,  neither  is  it  an  element  in  this  analysis. 
There  is  not  even  a  "trace."  Genius  would  not  be  representative  of  the 
masses. 

I  begin  with  the  legislature  of  Vermont,  a  sturdy  New  England  state, 
clinging  more  nearly  than  any  of  its  neighbors  to  the  ideals  of  a  day  long 
past.  A  survival  of  the  Revolutionary  times  gives  each  town  a  represent- 
ative in  the  lower  chamber.  Hence  we  find  one  of  the  largest  assemblies 
in  one  of  the  smallest  states.  There  are  two  hundred  and  fifty-two  mem- 
bers in  this  populous  House  of  Representatives,  while  in  the  Senate 
there  are  thirty  members. 

Of  the  thirty  members  of  this  Senate,  only  three  were  college  grad- 
uates ;  seven  had  received  training  in  professional  schools ;  seven  had 
been  educated  in  academies,  so  numerous  in  New  England  ;  and  thirteen 
received  no  further  education  than  that  offered  by  the  public  schools. 
Nine  of  the  senators  were  farmers,  of  lawyers  and  physicians  there  were 
four  each,  and  thirteen  were  engaged  in  mercantile  pursuits.  The  state 
constitution  limits  the  age  of  the  senators  to  thirty  years.  Only  three 
members  of  this  Senate  were  under  forty  years  of  age,  one  half  were 
between  fifty  and  sixty,  six  ranged  in  age  between  forty  and  fifty  years, 
while  six  were  beyond  threescore,  the  oldest  member  being  seventy-three. 
The  average  age  of  the  lawyers  was  forty-three  years,  of  the  physicians 
fifty  years,  of  the  business  men  fifty-one  years,  and  of  the  farmers 
fifty-four  years. 

Of  these  thirty  men  only  three  had  had  no  previous  political  experience. 
Some  had  been  in  office  practically  all  their  lives.  One  had  carried  the 
burdens  of  "  all  the  usual  town  offices."  Another  had  been  township 
clerk  thirty-five  years,  chairman  of  the  selectmen  thirty-seven  years,  and 
all  this  while  a  member  of  the  school  board  and  an  assistant  judge. 
Another  had  held  ''  most  of  the  town  offices,"  while  still  another  had 
held  "  all  except  clerk  and  treasurer."    What  showers  of  public  honors  I 

In  the  House  one  twentieth  were  college  graduates,  one  fourth  had 
received  training  in  academics,  while  over  one  half  had  gone  no  farther 
than  the  public  schools.  There  were  one  hundred  and  twenty-three  farm- 
ers in  this  House,  six  lawyers,  ten  physicians,  forty-eight  merchants  and 
manufacturers,  three  bankers,  five  preachers,  six  insurance  writers,  two 
hotel  proprietors,  three  liverymen,  fourteen  laborers  or  artisans,  including 
a  blacksniilli,  a  driver,  a  sailor,  a  teamster,  a  painter,  a  "  board  sawyer," 
several  laundrymen,  carpenters,  and  loggers.  Six  had  no  visible  occu- 
pation other  than  that  of  "  politician  and  officeholder,"  while  one  was  a 
student  not  yet  graduated  fr<jm  his  college.    One  would  think  that  a 


THE  LEGISLATURE 


43 


wonderful  degree  of  versatility  and  originality  was  displayed  by  some  of 
these  lawmakers  in  their  private  pursuits.  One  member  made  his  daily 
bread  by  "occasional  speculation,"  another  was  a  "  fish  culturist."  One 
useful  member  was  a  "  lawyer,  farmer,  and  breeder."  Another  was  busy 
as  "  town  clerk  and  treasurer,  and  clerk  in  a  general  store."  But  the 
most  versatile  of  this  coterie  of  men  of  many  affairs  was  one  who  pro- 
fessed to  find  time  to  be  a  "  furniture  dealer  and  undertaker  and  miller 
and  dealer  in  grain  and  feed." 

In  this  House  were  twelve  under  thirty  years  of  age ;  one  sixth  were 
between  thirty  and  forty  years,  one  third  were  between  forty  and  fifty 
years ;  one  fourth  were  between  fifty  and  sixty  years ;  while  thirty-five 
were  old  men  over  sixty.  The  average  age  of  the  lawyers  was  forty 
years,  of  the  business  men  forty-three  years,  of  the  laborers  forty-three 
years,  of  the  farmers  fifty  years,  of  the  physicians  fifty-two  years,  and 
of  the  clergymen  fifty-five  years. 

This  House  also  was  rich  in  political  experience.  Only  one  eighth  had 
never  before  held  public  office,  and  these  were  mostly  the  young  men. 
Many  of  the  older  members  had  held  office  for  fifteen,  eighteen,  twenty, 
and  thirty-six  years.  Over  one  half  had  held  more  than  three  offices,  and 
had  been  in  public  service  more  than  ten  years. 

Of  this  body  of  two  hundred  and  eighty-two  lawmakers  only  nineteen 
had  sat  in  former  legislatures,  —  several,  it  is  true,  for  four  or  five  terms  ; 
but  the  vast  bulk  had  received  no  previous  training  in  legislative  work. 
Such  special  preparation  for  legislative  duties  as  they  possessed  they 
had  received  in  the  minor  township  and  county  offices.  Thirteen  of  these 
men  were  old  soldiers,  and  two  were  of  foreign  birth. 

Ohio  may  be  taken  as  a  type  of  the  populous  state  in  which  manufac- 
turing, mining,  and  agriculture  are  of  nearly  equal  importance.  There 
sat  in  its  general  assembly  thirty-three  senators  and  one  hundred  and  ten 
representatives. 

In  the  Senate  one  third  had  received  a  college  training,  a  second  third 
had  not  been  farther  than  the  common  schools,  and  the  last  third  had 
been  trained  in  academies,  normal  schools,  and  professional  schools. 
Fourteen,  or  almost  one  half  of  this  body,  were  lawyers ;  nine  were  en- 
gaged in  business  affairs.  There  were  two  teachers,  two  editors,  two 
farmers,  and  one  physician.  Nine  of  the  senators  were  under  forty  years 
old,  nine  were  between  forty  and  fifty  years,  ten  were  between  fifty  and 
sixty  years,  and  two  were  over  sixty  years  old.  The  average  age  of  the 
lawyers  was  thirty-sk  years,  of  the  editors  thirty-eight  years,  of  the 
business  men  forty-four  years,  of  the  teachers  forty-nine  years,  and  of 
the  farmers  fifty-five  years. 

One  half  of  these  senators  had  not  held  previous  political  office  of  any 
kind.    Only  six  had  had  previous  legislative  experience. 

One  eighth  of  the  House  members  had  received  a  college  educa- 
tion ;  three  eighths  attended  normal  schools,  academies,  or  professional 


44  AMERICAN   STATE  GOVERNMENT 

schools;  and  nearly  one  half  received  only  a  common-school  education,  one 
representative  reporting  that  he  had  not  been  "  in  school  after  twelve." 
One  third  of  these  representatives  were  lawyers,  one  fifth  were  farmers, 
one  sixth  were  business  men,  including  manufacturers,  bankers,  druggists, 
a  lumber  dealer,  a  cattle  buyer,  a  hatter,  and  a  confectioner ;  there  were 
ten  teachers,  —  all  from  country  schools  or  villages,  —  five  physicians,  three 
editors,  and  one  preacher.  Ten  laborers  and  artisans  also  participated  in 
the  lawmaking.  This  category  includes  a  machinist,  several  carpenters, 
and  a  cigar  maker.  There  were  two  auctioneers  in  this  House,  one  the 
proud  possessor  of  "  an  established  reputation,"  and  the  other  "  one  of 
the  best  in  the  countr}^"  Here  was  a  commercial  traveler  who  laid  claim 
to  greatness  because  he  had  "  traveled  more  than  one  hundred  and  eighty 
thousand  miles."  One  member  had  for  thirty  years  been  a  court  crier 
accustomed  to  the  routine  of  court  drudgery.  With  him  sat  a  metal  pol- 
isher who  was  an  exponent  of  labor  unionism.  One  member  was  still  a 
student  in  a  law  school.  And,  most  unusual  of  all,  there  sat  in  this  het- 
erogeneous assembly  a  "  musical  composer  "  with  a  "  national  reputation, 
being  the  author  of  many  works  on  music  and  over  one  hundred  piano 
compositions,  many  of  which  have  proved  very  popular,"  which  is  more 
than  can  be  said  of  some  of  the  legal  compositions  which  he  helped  enact. 

Of  these  representatives  of  the  people  six  were  under  thirty  years  of 
age,  ver}'  nearly  one  half  were  between  thirty  and  forty  years,  one  fifth  be- 
tween forty  and  fifty,  one  eighth  between  fifty  and  sixty,  and  one  eighth 
over  sixty,  the  oldest  member  being  eighty  years  old.  The  average 
age  of  the  teachers  was  thirty-five  years,  of  the  lawyers  thirty-five  years, 
of  the  editors  forty-two  years,  of  the  physicians  forty-five  years,  of  the 
laborers  forty-one  years,  and  of  the  farmers  fifty-four  years. 

One  third  of  the  House  had  not  held  any  previous  political  office. 
Nearly  one  fourth  had  been  members  of  former  legislatures,  and  four  of 
these  men  were  professional  politicians  ;  while  others  were  "  experienced 
politicians  or  active  in  politics,"  or  had  "  entered  politics."  Such  mem- 
bers had  usually  filled  county  and  township  offices.  It  is  probable  that 
scarcely  any  one  is  sent  to  the  state  legislature  who  has  not  been  active 
in  local  party  organizations,  as  a  committeeman  or  as  a  delegate  to  county 
or  district  conventions.  The  acquaintance  thus  formed  is  an  essential 
prelude  to  a  successful  political  canvass. 

There  were  members  in  this  assembly  who  had  tried  their  skill  at  many 
occupations.  The  teacher  who  had  turned  lawyer  or  editor  or  farmer 
was  the  most  numerous,  of  this  class.  Several  were  both  farmer  and 
merchant ;  others  wrote  insurance  between  the  intervals  of  law  practice 
or  merchandising.  It  is  the  man  of  modest  affairs,  or  the  man  of  no 
affairs,  who  most  relishes  legislative  experience.  Over  one  tenth  of  these 
members  were  old  soldiers,  and  five  were  foreign  born. 

Indiana  represents  the  states  of  the  Middle  West  where  the  agricul- 
tural interests  are  still  predominant.    Of  the  fifty  senators  who  composed 


THE  LEGISLATURE 


45 


its  upper  house,  ten  had  received  a  college  education,  eight  had  gradu- 
ated from  professional  schools,  eight  had  partially  completed  a  college 
course,  twelve  had  attended  normal  schools  or  academies,  while  quite 
one  third  had  not  passed  beyond  the  common  schools.  Lawyers  com- 
posed just  one  half  of  this  Senate,  six  followed  mercantile  pursuits, 
seven  were  farmers ;  of  artisans  there  were  five,  including  a  glass  cutter 
and  a  factory  foreman ;  there  were  also  four  physicians,  two  teachers, 
and  one  editor.  Only  one  of  the  senators  was  under  thirty  years  old. 
One  half  were  under  forty,  one  third  were  between  forty  and  fifty,  eight 
were  between  fifty  and  sixty,  while  only  three  were  over  sixty.  The 
average  age  of  the  lawyers,  the  predominating  force  of  the  body,  was 
forty  years,  of  the  physicians  thirty-nine  years,  of  the  teachers  forty  years, 
of  the  artisans  forty-five  years,  of  the  farmers  forty-seven  years,  and  of 
the  business  men  fifty  years.  This  was  virtually  a  Senate  of  young  men. 
One  third  had  not  held  previous  political  office,  w-hile  one  tenth  had  held 
office  over  ten  years,  and  one  third  had  been  members  of  former 
legislatures,  many  of  them  for  several  terms. 

One  seventh  of  the  House  members  were  college  graduates,  sixteen 
had  received  training  in  professional  schools,  six  partially  completed  their 
college  course,  while  eighteen  had  attended  academies  or  normal  schools. 
Nearly  one  half  the  members  had  no  other  education  than  that  offered 
by  the  public  schools.  The  records  of  some  of  these  men  recall  the 
pioneer  days.  Two  had  received  but  "  six  months'  schooling."  Another 
had  been  deprived  of  all  educational  advantages  in  his  youth,  and  what 
education  he  possessed  he  received  after  he  had  grown  to  manhood. 
One  member  had  learned  to  read  in  Sunday  school.  Yet  another  had 
only  a  "  limited  education."  And  still  another  survival  of  the  age  of  prim- 
itive things  had  got  "  four  months  of  schooling  in  a  log  schoolhouse." 
Not  quite  one  third  of  these  representatives  of  the  people  were  lawyers ; 
another  full  third  were  farmers ;  of  the  remaining  one  third,  four  were  phy- 
sicians and  four  were  editors ;  the  remainder  was  about  equally  divided 
between  business  men  and  artisans  or  laborers.  With  the  bankers,  manu- 
facturers, and  merchants  sat  carriage  makers,  miners,  painters,  glass 
blowers,  bricklayers,  bottle  blowers,  and  plumbers.  Here  also  we  find 
a  member  who  was  still  a  student  in  college,  and  who  was  honored  with 
the  privilege  of  nominating  a  United  States  senator. 

Of  experience  in  officeholding  a  scant  one  third  had  had  none,  while  five 
had  been  in  public  service  over  ten  years,  and  one  had  held  office  over  twenty- 
two  years.   Nearly  one  fourth  had  been  members  of  former  legislatures. 

Nine  of  this  House  were  under  thirty  years  of  age  and  nine  were  over 
sixty.  The  rest  were  about  equally  divided  among  the  three  decades 
between  thirty  and  sixty  years.  The  average  age  of  the  lawyers  w^as 
thirty-four  years,  and  twenty  of  this  number  were  only  thirty  or  under ; 
of  the  laborers  or  artisans  forty-two ;  of  the  business  men  forty-four ; 
of  the  physicians  fifty-five ;  and  of  the  farmers  fifty-five  years. 


46  AMERICAN   STATE  GOVERNMENT 

In  this  assembly  were  eight  old  soldiers  and  four  foreign  born.  There 
is  evidence  here  of  the  same  diversity  of  gifts  that  we  have  found  in  the 
other  states.  Here  is  one  man  who  was  "  teacher,  publisher,  and  lawyer  " ; 
another  who  combined  the  tasks  of  "  farmer,  brickmaker,  and  brick- 
layer." Of  "  farmer  and  lawyer  "  there  are  many  ;  so  of  those  who  unite 
the  duties  of  "  teacher  and  merchant "  or  "  teacher  and  farmer,"  or 
"  merchant  and  insurance  "  ;  while  one  carries  his  partisanship  into  his 
breadwinning  as  a  "  farmer,  carpenter,  contractor,  and  Democrat." 

Here  also  sat  representatives  of  the  labor  union,  one  of  whom  avowed 
his  convictions  that  "our  tax  and  financial  systems  should  be  overhauled." 
Fortunately  he  was  in  a  large  minority,  and  there  was  no  overturning 
of  established  institutions.  A  "  sound-money-protectionist-expansionist " 
helped  neutralize  the  acid  of  socialism. 

Finally,  Missouri  may  be  taken  as  a  representative  of  the  southwestern 
states  where  the  sentiments  of  ante-bellum  days  are  being  rapidly  dis- 
pelled by  manufacture  and  industry. 

In  the  assembly  I  describe  sat  thirty-four  senators  and  one  hundred 
and  forty-two  representatives.  One  third  of  the  senators  were  college 
graduates  ;  nearly  one  half  had  not  passed  beyond  the  common  schools ; 
of  the  remainder  about  equal  numbers  had  either  a  professional  training, 
or  had  attended  college  for  a  short  time,  or  had  taken  a  course  in  a  nor- 
mal school  or  in  an  academy.  Two  thirds  of  the  senators  were  lawyers ; 
the  remaining  one  third  were  mainly  business  men,  only  three  farmers 
being  found  in  the  list,  and  one  physician.  One  half  of  these  men  were 
between  forty  and  fifty  years  of  age,  two  were  over  sixty,  and  one  third 
were  under  forty.  The  lawyers  averaged  forty-one  years,  the  business 
men  forty-seven  years,  and  the  farmers  sixty-four  years.  Only  five  of 
this  membership  had  held  no  former  political  office,  and  two -thirds  had 
been  members  of  former  legislatures,  most  of  these  for  several  terms. 
Nearly  all  of  the  lawyer  members  had  been  prosecuting  attorneys,  or  city 
attorneys,  or  county  judges.  This  Senate  was  therefore  rich  in  political 
experience. 

Of  the  one  hundred  and  forty-two  members  of  the  lower  house  only 
seven  had  completed  their  college  course,  while  twenty-seven  had  gone 
partially  through  college.  Thirteen  had  attended  professional  schools 
and  twenty-one  had  received  their  education  in  sccondar)^  schools.  Over 
54  per  cent  were  limited  to  a  common-school  education.  One  member  had 
formed  the  commendable  habit  of  "studying  at  home,"  and  his  colleague 
in  intellectual  industry  confes.sed  himself  "quite  a  student  of  political 
economy." 

Not  quite  one  third  of  the  House  were  lawyers,  and  one  tiiird  were 
farmers ;  one  fourth  were  engaged  in  business  pursuits,  including  bank- 
ing, manufacturing,  real  estate,  insurance,  contracting,  and  milling.  Six 
members  were  physicians,  three  were  teachers,  and  nine  were  editors  and 
"  newspaper  men."    Willi  the  two  clergymen  sat  one  college  professor 


THE  LEGISLATURE 


47 


and  one  saloon  keeper.  The  unions  were  represented  by  a  plasterer,  a 
"  grainer  and  marbler,"  a  miner,  a  smelter,  and  a  "  railroad-car  inspector." 

The  variations  of  mercantile  and  professional  combinations  were  as 
amusing  as  in  the  other  states  we  have  studied.  Here  was  an  "  under- 
taker and  lawyer,"  certainly  a  misjoinder  of  parties.  Should  it  not  read 
"  undertaker  and  physician  "  .''  Here  sat  the  "  promoter  and  real  estate 
merchant,"  the  "  salesman  and  mine  organizer,"  the  "  furniture  dealer 
and  editor,"  the  "  horticulturalist,"  and  the  "  breeder  of  hogs,"  the  "  mer- 
chant, miner,  and  farmer,"  and  the  "  teacher,  minister,  and  farmer."  Of 
"  farmer  and  merchant  "  there  were  several,  also  of  "  farmer  and  miner  " 
and  "  farmer  and  teacher." 

Seven  of  this  interesting  throng  were  under  thirty  years  of  age,  one 
seventh  were  over  sixty,  over  one  third  were  between  thirty  and  forty, 
and  one  half  between  forty  and  sixty.  The  average  age  of  the  lawyers 
was  forty-one  years,  of  the  laborers  thirty-nine,  of  the  teachers  thirty-five, 
of  the  physicians  forty-two,  of  the  business  men  forty-four,  of  the  editors 
forty-two,  and  of  the  farmers  fifty-one. 

One  fourth  of  the  House  had  not  held  previous  political  office,  while 
one  third  had  been  members  of  former  legislatures,  many  of  them  for 
several  terms.  Over  one  half  of  the  members  had  held  more  than  two 
offices,  and  one  third  had  been  in  office  more  than  ten  years.  In  this 
assembly  of  one  hundred  and  seventy-five  citizens  seven  were  of  for- 
eign birth  and  forty-two  had  borne  arms  in  the  Civil  War,  either  for  the 
Union  or  for  the  Confederacy. 

These  are  the  four  legislatures,  and  from  what  I  can  learn  they  are 
typical  of  the  entire  forty-five  that  convene  annually  or  biennially  in 
our  land. 

To  those  who  look  for  a  body  of  well-trained  and  expert  lawmakers 
this  analysis  must  be  depressing.  To  those  who  affirm  that  the  average 
state  legislature  is  not  representative  of  the  great  body  of  citizens,  the 
data  gathered  are  likewise  disappointing,  for  one  must  be  profoundly 
impressed  by  the  real  representative  character  of  these  lawmaking  bodies. 
Every  degree  of  education  is  represented.  Indeed,  the  one  fifth  of  the 
men  of  college  training  and  the  one  third  of  academy  or  professional 
training  far  outnumber  the  ratio  of  such  men  in  everyday  life.  Every 
profession  is  represented,  —  almost  every  conceivable  business  activity  has 
its  patrons  on  the  floor  of  our  legislature ;  with  the  farmer  sits  the  arti- 
san, with  the  banker  sits  the  union-labor  agitator,  with  the  manufacturer 
sits  the  small  shopkeeper,  with  the  preacher  sits  the  saloon  keeper,  with 
the  professional  specialist  sits  the  Jack-of-all-trades.  It  is  true  that  these 
assemblies  are  far  more  representative  of  the  rural  communities  than  of 
the  great  cities.  I  have  mentioned  the  men  who  engage  in  a  multiplicity 
of  pursuits.  These  can  thrive  only  in  the  country.  The  city  exacts  spe- 
cialization. From  the  cities  come  most  of  the  young  lawyers  seeking 
publicity,  the  labor-union  representatives,  and  the  professional  politicians. 


48  AMERICAN  STATE  GOVERNMENT 

The  age  of  the  lawmaker  is  not  that  of  unfledged  youth  or  useless  age. 
Man  is  in  his  prime  from  forty  to  sixty,  and  the  very  large  majority  of 
our  legislators  are  of  that  age.  The  extreme  youth,  not  yet  in  possession 
of  his  college  degree,  and  the  man  laden  with  the  experiences  of  eighty 
years  are  only  picturesque  extremes  in  these  democratic  assemblies. 

And  in  the  experiences  of  political  life,  likewise,  every  phase  and  varia- 
tion is  represented.  Those  who  have  been  only  voters,  those  who  make 
politics  a  business ;  those  who  are  ardent  partisans,  and  those  who  are 
politically  torpid ;  the  conservative  and  the  demagogue,  —  all  are  inter- 
mingled in  these  representative  bodies.  Even  the  foreign-born  citizens 
are  well  represented. 

But  a  legislature  is  not  only  to  represent  the  people,  it  is  to  make  laws ; 
and,  unfortunately  for  our  legislative  system,  the  making  of  laws  requires 
expert  knowledge,  judicious  temperament,  and  great  wisdom.  None  of 
these  qualities  are  apparent  in  bulk  in  any  state  legislature.  The  class 
of  men  who  possess  expert  knowledge  in  framing  and  interpreting  law 
are  the  lawyers.  While  they  predominate  over  other  professions  in  the 
legislature,  those  who  are  found  there  are  either  young  men  or  men 
without  large  practice.  I  think  that  it  will  surprise  my  readers  to  learn 
that  from  one  fourth  to  one  third  of  the  members  had  previous  expe- 
rience in  legislative  work.  These  can  temper  the  conduct  of  the  raw 
members,  but  they  can  scarcely  be  called  experts.  It  requires  also  another 
species  of  expert  to  aid  in  lawmaking  :  the  man  who  is  possessed  of  tech- 
nical information  concerning  the  conditions  that  bring  forth  the  law, — the 
mining  engineer,  the  electrician,  the  shipmaster,  the  sociologist ;  the  men 
who  are  most  affected  by  the  contemplated  laws.  These  are  rarely  found 
in  the  halls  of  legislation. 

There  are  other  features  of  this  problem  which  cannot  be  revealed  by 
statistics,  but  which  must  be  discovered  by  personal  knowledge.  How 
many  of  these  men  have  been  elected  by  corporate  interests,  to  help 
pass  laws  favorable  to  corporations  ?  How  many  are  owned  by  politi- 
cians, and  how  many  by  rich  individuals  seeking  ulterior  gain  ?  How 
many  sought  their  seats  with  the  secret  purpose  of  bartering  their  influ- 
ence for  money  >  And  finally,  how  many  are  absolutely  independent, 
placing  public  welfare  high  above  the  claims  of  party  or  of  persons? 
My  experience  must  lead  me  to  answer  each  of  these  questions  in  the 
same  manner :   But  very  few. 

The  legislature  is  composed  of  average  men,  possessed  of  human  weak- 
nesses, prejudices,  and  passions.  'I'hey  are  elected  by  party  machinery. 
They  are  pressed  by  corporate  and  party  demands.  The  majority  are  as 
honest  as  they  are  simple,  and  as  efficient  as  they  are  wise.  These  men 
meet  to  frame  our  laws ;  their  work  is  largely  foreordained.  Let  us 
scan  hastily  Iheir  method  of  organizing  and  the  quality  of  their  out])ut. 

I  remember  the  first  state  legislature  I  ever  saw.  1  was  a  freshman  in 
college  and  had  gone  to  the  Capitol  to  witness  the  organizing  of  the  Senate 


THE  LEGISLATURE  49 

and  House.  The  scenes  I  looked  upon  were  almost  a  parallel  to  those  in 
which  I  had  been  an  actor  but  a  few  months  before,  —  the  organizing  of 
our  freshman  class.  The  importance  suddenly  thrust  upon  the  fresh 
matriculate  turns  his  head  about  as  much  as  the  sudden  fame  upsets  the 
new  legislator.  Here  are  men  who  have  always  lived  in  small  towns  and 
out-of-the-way  places,  unaccustomed  to  travel  and  distinction,  now  be- 
come suddenly  the  center  of  interest  for  the  entire  state.  Their  pictures 
are  in  the  papers,  distinguished  politicians  seek  them  out,  they  are  com- 
plimented and  dined,  and  in  the  blaze  of  this  transitory  flame  of  glory 
they  lose  themselves.  The  state  legislature  has  been  the  burial  place  of 
many  a  man's  virtue. 

The  most  important  function  of  our  early  legislatures  was  deliberation. 
This  has  almost  entirely  disappeared.  The  rush  of  the  age  has  invaded 
the  dignified  assembly  hall,  and  bills  are  shot  through  as  by  pneumatic 
pressure.  The  two  most  important  factors  in  modern  legislation  are  the 
lobby  and  the  committee.  What  deliberation  now  is  granted  a  measure 
is  given  in  committee  rooms  and  in  private  discussion.  In  the  turmoil  and 
boyish  ardor  of  organizing,  the  lobby  interests  must  secure  committees. 

It  takes  some  weeks  before  the  new  members  become  accustomed  to 
legislative  routine.  An  average  session  lasts  about  four  months.  Of  these 
the  first  is  given  over  to  organizing  and  learning  the  pace,  the  second 
and  third  to  trading  and  manipulating,  and  the  final  month  is  devoted 
to  law  passing. 

The  amount  of  this  legislation  is  overwhelming.  One  of  the  legisla- 
tures I  have  described  sat  one  hundred  and  thirty-two  days.  It  passed 
four  hundred  and  forty-eight  general  laws,  three  hundred  and  twenty- 
eight  local  laws,  and  sixty-two  joint  resolutions,  a  total  of  eight  hundred 
and  thirty-eight  enactments,  or  an  average  of  sLx  and  one  third  a  day. 
But  the  work  was  not  thus  evenly  distributed.  One  half  of  these  meas- 
ures were  passed  the  last  fifteen  days.  On  the  last  day  were  passed 
seventy  general  laws,  seventeen  local  laws,  and  six  joint  resolutions.  On 
next  to  the  last  day  were  passed  fifty-nine  general  laws,  twenty  local  laws, 
and  one  joint  resolution,  —  a  total  of  one  hundred  and  seventy-three  enact- 
ments, or  one  fifth  of  the  work  of  the  session,  in  two  days.  I  will  grant 
that  some  of  this  grist  had  been  ground  out  in  committee,  but  how  fine 
could  even  a  committee  grind  so  much  grist  ?  There  are  twenty-four 
hours  in  one  day ;  in  forty-eight  hours  one  hundred  and  sevent)--three 
laws  were  passed,  or  one  law  every  sixteen  minutes.  But  as  the  legisla- 
ture sat  only  twelve  hours  a  day,  these  rules  of  human  conduct  were 
created  at  the  rate  of  one  every  eight  minutes.  \Miat  fecundity !  And 
there  is  a  fiction  that  every  one  is  presumed  to  know  the  law. 

These  were  not  all  trivial  measures,  mere  amendments  or  matters  of 
little  import.  The  work  of  this  session  included  important  laws  concern- 
ing the  powers  of  the  boards  of  health,  laws  regulating  electric  and  gas 
corporations,  and  an  entire  negotiable-instrument  code. 


50  AMERICAN  STATE  GOVERNMENT 

In  the  same  year  were  passed  by  the  various  state  legislatures  nine 
thousand  three  hundred  and  twenty-five  local  laws  and  four  thousand 
eight  hundred  and  thirty-four  general  laws,  —  a  total  of  fourteen  thousand 
one  hundred  and  fift)'-nine  ;  an  overproduction  that  has  lifted  lawlessness 
above  par. 

Of  this  mass  of  legislation  a  portion  is  wholesome,  another  portion  is 
merely  passive  and  harmless,  —  if,  indeed,  any  innocent  and  inert  law  can 
be  harmless,  —  a  third  fraction  is  vicious,  and  a  final  part  is  foolish. 

The  wholesome  laws  are  usually  the  result  of  prelegislative  deliberation. 
I  believe  the  practice  developed  in  recent  years,  of  codifying  all  laws 
upon  one  subject,  is  a  hopeful  tendency  toward  mature  legislation.  The 
listless  laws  are  the  offspring  of  our  deplorable  habit  of  special  legislation, 
mated  with  our  American  good  humor.  The  foolish  laws  are  the  fruit  of 
ill-conceived  reforms.  And  the  vicious  laws  are  the  result  of  briber}^,  of 
carelessness,  of  selfishness,  and  of  partisanship. 

The  first  group  of  vicious  laws  are  due  to  selfishness  and  briber)% 

Some  men  are  always  found  in  every  legislature  who  were  sent  there 
for  one  special  purpose.  A  few  are  always  found  who  will  play  with  the 
gold  of  others.  The  combination  of  these  few  with  the  gullible  many 
makes  possible  vicious  laws.  Closely  related  to  these  men  are  the  one  or 
two  "  milkers  "  found  in  every  legislature.  These,  under  the  guise  of 
benevolence,  introduce  a  bill  "  to  further  secure  the  rights  of  stockholders 
in  insurance  companies,"  or  some  kindred  title,  hiding  beneath  the  most 
innocent  phrases  the  most  violent  measures.  This  brings  all  the  interested 
corporations  to  the  capital  with  the  pap,  and  the  venal  legislator  fattens  to 
bursting.    Unfortunately  legislation  is  often  a  marketable  commodity. 

Another  class  of  vicious  legislation  is  due  to  carelessness.  The  vol- 
umes of  repealed  and  amended  laws  are  tokens  of  this  thoughtlessness. 
In  1873  the  legislature  of  New  York  passed  a  charter  for  the  metropolis, 
and  the  repealing  clause  threatened  a  general  jail  deliver)-.  The  governor 
refused  to  sign  the  measure  until  an  amendment  rectified  this  careless 
error.  In  1882  the  legislature  of  the  same  state  passed  a  municipal  code, 
and  a  whole  page  of  the  original  was  omitted  from  the  copy  sent  to  the 
executive  for  approval.  Through  a  legislative  blunder  the  supreme  court 
of  Ohio  was  robbed  of  a  large  portion  of  its  jurisdiction  two  years  ago, 
and  an  act  of  a  special  session  of  the  legislature  was  required  to  override 
the  mistake.  A  repealed  or  amended  law  is  sometimes  an  indication  of 
a  change  in  conditions ;  more  often  it  is  a  confession  of  weakness  or  of 
shortsightedness.  Our  tendency  constantly  to  amend  makes  laws  shifting 
as  the  sands. 

And  a  final  group  of  vicious  laws  are  due  to  partisanship.  The  machine 
in  American  politics  is  the  merging  of  all  functions  of  government  in  one 
control.  While  I  believe  that  the  popular  estimates  of  party  tyranny  are 
somewhat  overdrawn,  there  are  yet  perennial  occasions  for  a  general  re- 
vulsion of  feeling.    The  party  lash  is  too  often  substituted  for  public 


THE  LEGISLATURE 


51 


conscience.  When  a  United  States  senator  is  to  be  elected,  party  ser\'il- 
ity  reaches  its  extreme.  The  candidates  for  the  Senate  are  announced 
before  the  legislators  are  nominated,  and  the  senatorial  contest  is  no 
more  confined  to  the  state  capitol  than  the  presidential  elections  to  the 
room  wherein  the  electors  meet. 

The  blood-bought  Goebel  Law  of  Kentucky,  allowing  the  governor  to 
appoint  all  local-election  officials,  and  permitting  the  legislature  to  can- 
vass election  returns  and  reject  the  vote  of  any  county,  with  no  power  of 
review  in  any  court,  is  an  example  of  the  vicious  extreme  to  which  parti- 
sanship leads.  In  1901  West  Virginia  passed  ten  "ripper"  bills,  giving 
the  incoming  governor  the  power  to  appoint  all  the  boards  of  control  of 
all  the  public  institutions  in  the  state.  So  are  often  created  new  and  un- 
necessary offices  and  places,  to  serve  as  nests  for  the  faithful  party 
workers.  The  payrolls  of  our  states,  like  those  of  our  cities,  are  padded 
for  the  benefit  of  the  party  henchmen.  The  evil  is  multiplied  when  the 
machine  allies  itself  to  corrupt  and  powerful  corporate  interests.  This 
is  not  infrequent.    Every  state  has  fought  such  unholy  alliances. 

The  method  used  by  party  leaders  to  bring  "  pressure  "  to  bear  on  a 
member,  or  to  "  lead  him  to  see  the  light,"  are  as  amusing  as  they  are 
diverse  and  original.  I  know  of  an  instance  where  the  wife  of  a  reluctant 
legislator  was  kidnaped  and  held  a  prisoner  for  four  hours  in  the  rooms 
of  a  man  who  aspired  to  become,  and  did  become,  a  United  States  sen- 
ator. The  political  influence  over  the  wife  proved  as  potent  as  her  influ- 
ence over  the  husband.  This  winter,  in  one  of  our  legislatures,  it  became 
necessary  to  put  through  a  measure  which  was  labeled  "  purely  political, 
and  therefore  not  a  question  of  conscience,"  —  an  unusual  inference.  A 
boy  member  of  the  legislature  happened  to  have  a  conscience  which  was 
somewhat  political  in  its  sensitiveness,  and  refused  to  line  up.  His  father 
was  called  to  the  capital,  and  parental  persuasion  succeeded  where  political 
power  failed. 

And  finally,  in  this  long  list  of  laws  there  are  always  a  few  fool  meas- 
ures. There  is  at  least  one  fool  in  every  legislature.  He  imagines  him- 
self a  reformer.  He  slips  in  his  bill  and  trades  and  logrolls  for  its  passage. 
Thus  in  Nebraska  the  reformer  wanted  to  prohibit  women  from  wearing 
corsets  and  bloomers.  This  was  clearly  class  legislation,  for  the  title 
made  no  mention  of  men.  In  Pennsylvania  he  wanted  to  prohibit  treat- 
ing. In  Kansas  he  wished  to  repeal  the  constitution  and  enact  the  Dec- 
alogue in  its  stead.  In  Indiana  he  desired  benevolently  to  change  the 
mathematical  ratio  of  3. 141 6  to  3.15  because  it  was  "  easier  to  calculate." 
And  in  Michigan  he  wished  to  forbid  the  wearing  of  tights  in  circuses 
and  theaters,  and  the  use  of  every  language  except  English  on  the  menus 
of  hotels  and  restaurants.  This  last  bill  had  its  origin  in  the  woeful  ex- 
perience of  a  country  member  who  visited  Detroit  for  the  first  time.  He 
confessed  that  he  could  not  read  the  menu  at  the  hotel  whither  he  had 
resorted  for  his  dinner.    So  he  blindly  ordered  twelve  dishes,  "  and  I  '11 


52  AMERICAN  STATE  GOVERNMENT 

be  hanged  if  seven  of  'em  wer'n't  potatoes,"  he  divulged,  as  he  explained 
his  reform  bill.  In  Arkansas  three  years  ago  the  fool  member  actually 
succeeded  in  passing  a  drastic  antitrust  law  which  prohibits  any  corpora- 
tion which  is  a  member  of  any  pool  or  trust  in  any  part  of  the  world 
from  doing  business  in  the  state.  The  members  who  passed  this  all- 
reaching  measure  probably  formed  Zl posse  comitatiis  to  insure  its  efficiency. 

These  proceedings  betray  the  common  weaknesses  of  mankind  lurking 
in  the  hearts  of  our  legislators.  The  creation  of  a  party,  the  legislator  is 
by  nature  partisan ;  the  creature  of  a  boss,  he  is  by  nature  servile ;  a 
lover  of  fame  or  of  wealth,  he  naturally  quails  before  temptation  ;  a  man 
from  the  normal  walks  of  life,  with  neither  special  training  nor  special 
unfitness,  he  is  amenable  to  the  normal  influences  that  commonly  affect 
human  action.  There  is  no  need  of  calling  him  names.  He  is  the  result 
of  our  system  of  politics.  The  college  professor  may  call  him  "  a  country 
squire  "  or  "  a  labor  demagogue."  The  publicist  may  rail  at  "  a  body  of 
boys,  and  inexperienced,  unknown  farmers."  The  preacher  may  hurl 
theological  epithets  at  "  the  puppet  tool  of  the  damned  boss  "  ;  the  fact 
remains  that  the  average  legislature  represents  the  average  American 
human  being.  His  pathology  is  not  unique.  We  must  not  be  so  hasty  in 
laying  all  the  blame  for  vicious  and  careless  legislation  at  the  door  of  our 
representatives.   A  vast  deal  of  the  fault  lies  elsewhere. 

In  the  first  place  we  are  law  mad.  We  look  upon  law  as  a  cure-all.  If 
you  want  an  index  to  all  human  ills,  read  the  table  of  contents  of  any 
statute  book.  The  legislature  is  not  to  be  primarily  blamed  for  this.  It 
is  in  the  air  ;  the  people  demand  this  multiplicity  of  laws.  And  it  certainly 
is  an  adventitious  budding  of  our  political  tree,  which  the  forefathers,  in 
the  planting,  did  not  contemplate.  The  theory  of  the  constitutional  fathers 
was  that  the  government  should  be  one  of  limited  powers.  They  be- 
lieved that  the  people  should  be  let  alone,  to  work  out  their  own  sal- 
vation. They  did  not  believe  that  the  legislature  could  create  values, 
morals,  and  happiness.  We  say  of  the  commonwealth,  "  Let  the  legis- 
lature work  out  your  salvation,  and  while  it  is  doing  so,  fear  and  tremble." 
This  seems  to  be  an  American  mania,  this  craze  for  law  collecting,  like 
our  craze  for  bric-a-brac.  In  no  liberal  country  in  Europe  are  there  so 
many  laws  as  in  our  country ;  in  none  are  laws  more  burdensome  and 
less  conscientiously  enforced.  No  European  health  commission  has  such 
arbitrary  powers  as  an  American  board  of  health.  While  we  arc  filling 
quarto  pages  with  legislative  rubbish,  let  us  recall  Tacitus :  "  When  a 
state  is  most  corrupt,  then  the  laws  arc  most  multi])lied." 

In  the  second  place  we  have  developed  the  deplorable  habit  of  special 
or  private  legislation,  and  this  habit  we  arc  carrying  to  a  silly  extreme. 
Over  one  half  of  the  laws  annually  passed  are  local  or  special  in  their 
nature.  Utterly  insignificant  as  are  these  backyard  measures,  they  are 
enacted  at  the  demand  of  a  clamoring  ronstituencv,  and  rob  the  legisla- 
ture of  its  time  and  strength.    A  member's  reputation  is  niulliplied  by 


THE  LEGISLATURE 


53 


the'  number  of  such  laws  that  he  can  pass  for  his  neighbors.  I  know  of 
one  who  fathered  twenty  of  them  successfully,  from  babyhood  to  matur- 
ity, in  one  year.  His  constituency  rewarded  him  for  this  commendable 
energy  by  electing  him  to  higher  office. 

Everybody  with  a  grievance  or  an  ambition  hastens  to  the  legislature. 
The  member  feels  called  upon  to  look  first  after  the  interests  of  his  con- 
stituents, afterwards  to  the  interests  of  the  state  at  large.  He  uses  these 
private  bills  as  a  lever  upon  which  to  raise  his  prestige  as  a  statesman ; 
as  a  medium  of  exchange  for  legislative  values,  trading  with  his  fellow 
lawmakers  for  the  passage  of  their  private  bills.  These  measures  receive 
practically  no  attention  from  committees.  If  the  people  of  the  district 
want  them,  why  that  settles  it.  They  know  their  business.  So  the  whim 
of  a  farmer  or  the  wish  of  a  neighborhoodjbecomes  glorified  into  a  statute. 

This  custom  is  made  possible  by  another  American  custom,  that  of 
district  representation.  Why  should  a  man  live  in  a  given  corner  in  order 
to  be  able  to  make  laws  for  a  state  ?  Of  course  the  reason  is  that  that 
particular  district  feels  entitled  to  special  legislation.  The  two  customs 
are  twins,  one  should  perish  with  the  other. 

In  the  third  place  we  have  not  yet  learned  to  differentiate  entirely  the 
functions  of  legislation  and  administration.  When  the  evolution  which 
dictates  the  total  separation  of  these  functions  is  completed,  then  separate 
organs  of  administration  will  be  developed,  as  they  are  in  France  and 
Germany.  But  meanwhile  our  state  legislatures  persist  in  confusing  the 
administration  of  state  institutions  with  the  making  of  law.  This  practice 
is  baneful  alike  to  institutions  and  departments  of  government,  and  to 
the  purely  legislative  work  of  the  assembly. 

In  the  fourth  place  we  seem  entirely  oblivious  to  the  forward  strides 
of  our  republic,  and  to  the  fundamental  principle  that  government  must 
vmxch.  pari  passu  with  progress.  We  seem  to  forget  that,  since  the  days 
of  the  first  thirteen  states,  our  population  and  social  and  economic  condi- 
tions have  undergone  wonderful  changes.  Then  society  was  agricultural 
and  wealth  individual ;  now  society  is  urban  and  wealth  corporate.  The 
change  in  needs  and  the  multiplicity  and  diversity  of  emergencies  which 
arise  in  this  complex  society  we  meet  with  legislative  methods  which  were 
suited  to  the  simple  needs  of  a  sparsely  settled  agricultural  community. 

The  most  potent  force  in  our  economic  life  is  the  corporation.  This 
creature  of  law  has  become  the  creator  of  law.  This  shifting  of  property 
obligation  from  the  individual  to  the  aggregation  necessitates  a  new 
conception  of  duty.  But  have  you  ever  seen  evidences  of  a  corporate 
conscience  ?  All  branches  of  our  public  law  have  been  undergoing  a  slow 
metamorphosis,  because  of  the  entrance  of  the  corporation  into  our  legal 
environment.  So  must  all  branches  of  our  private  law  become  modified. 
The  corporation  has  found  a  permanent  place  in  our  business  life,  but  we 
have  not  yet  formed  for  ourselves  a  permanent  safeguard  against  its  con- 
stant intrusions  upon  private  rights.  We  have  retained  the  simple  methods 


54  AMERICAN  STATE  GOVERNMENT 

of  a  colonial  legislature,  while  society  has  proceeded  with  giant  strides 
toward  the  goal  of  corporate  property  and  responsibility.  It  is  not  an 
impossible  task  for  a  corporation  to  own  a  legislature.  More  than  one 
railroad  corporation  has  successfully  accomplished  this  task  of  govern- 
ment ownership.  These  great  artifiaal  beings  have  many  times  set  out 
to  elect  a  legislature  in  consonance  with  their  desires.  They  have  also 
many  times  secured  the  control  of  a  legislature  after  its  election.  We  can- 
not excuse  corruption,  neither  ought  we  to  excuse  a  society  that  meets  such 
novel  and  potent  conditions  with  such  primitive  and  impotent  methods. 

There  remain  the  t\vo  usual  accusations,  heard  wherever  a  legislature 
is  discussed :  these  men  lack  ability  and  experience,  and  they  also  lack 
the  time  necessar)'  for  deliberate  and  judicious  action. 

It  is  true  that  the  average  representative  is  not  a  man  of  unusual  abil- 
ity. Men  of  ability  cannot  usually  be  persuaded  to  leave  their  congenial 
occupations  and  subject  themselves  to  the  harsh  criticisms  of  an  unfeel- 
ing public,  and  to  the  rigors  of  a  political  contest.  I  value  among  my 
acquaintances  a  man  of  culture  and  ability  who  was  requested  by  his 
neighbors  to  allow  his  name  to  be  used  as  a  candidate  for  the  legislature. 
He  was  obliged  to  refuse,  for  the  pay  the  state  allowed  was  not  enough 
to  meet  his  expenses  as  a  candidate  and  legislator.  He  would  have  to 
suspend  his  work  and  hire  some  one  to  take  his  place  during  the  session. 
It  is  only  in  a  crisis  that  a  citizen  should  be  compelled  to  give  his  fortune 
and  his  livelihood  to  the  state.  We  do  not  pay  our  legislators  a  living 
wage,  certainly  not  a  wage  that  can  attract  ability.  We  do  not  honor 
our  lawmakers,  but  rather  it  is  a  term  of  ridicule  and  jest  among  the 
cultured  classes  to  be  known  as  a  member  of  the  legislature. 

The  result  of  this  attitude  of  the  state  is  perfectly  natural.  The  men 
of  ability  avoid  the  office.  About  75  per  cent  of  the  members  seek 
the  place.  They  are  of  a  kind  who  relish  the  opportunities  that  ac- 
company it.  Some  are  available  because  they  are  "  old  soldiers  "  from 
the  Civil  War,  others  because  they  are  young  soldiers  from  the  Spanish 
War.  Some  have  been  party  servants,  and  this  is  their  reward  for  faith- 
ful service.  Some  "voted  for  Lincoln."  A  few  are  the  incarnation  of 
radical  ideas.  And  still  fewer  have  only  the  recommendation  of  a  quiet, 
useful  life  filled  with  good  deeds  and  honest,  plain  thinking.  Of  the  four 
legislatures  tabulated  above,  I  can  count  a  scant  dozen  men  in  each  body 
who  are  really  men  of  superior  ability  or  experience.  The  rest  arc  not 
necessarily  mediocre,  but  fairiy  represent  the  average  intelligence,  honesty, 
and  ability  of  the  community.  There  are  a  few  young  men  who  seek  the 
position  as  a  stepping-stone  to  higher  political  honors.  A  few  of  these 
subsequently  rendered  the  nation  valuable  service ;  some  of  our  wisest 
statesmen  received  their  training  in  these  preparatory  schools  of  legisla- 
tion. A  large  number  graduate  into  Congress.  In  the  national  House 
of  Representatives  37  ^  per  cent  of  the  members  were  thus  prepared, 
and  of  the  Senate  44^^^  per  cent. 


THE  LEGISLATURE  55 

In  1777  it  was  written  into  the  constitution  of  Vermont :  "  The  House 
of  Freemen  of  this  state  shall  consist  of  persons  most  noted  for  wisdom 
and  virtue,  to  be  chosen  by  ballot,  by  the  freemen  of  every  town  in 
this  state." 

Time  and  conditions  have  lowered  our  standard.  We  are  content  with 
average  wisdom  and  average  virtue ;  and  in  years  of  apathy  virtue  and 
wisdom  are  quite  forgotten,  and  we  elect  whom  the  machine  nominates. 
Rotation  in  office,  party  control  of  nominating  machinery,  the  ambitions 
of  corporations  and  of  party  leaders,  —  these  are  the  forces  that  move 
the  pawns  on  the  legislative  chessboard.  Under  the  political  conditions 
which  the  majority  of  the  voters  tolerate,  can  we  expect  the  legislature 
of  a  state  to  be  composed  of  the  best  men  of  the  community  ?  And  we 
know  that  the  real  danger  of  the  democracy  is  the  withdrawal  of  intelligent 
and  humble  men  from  public  duties. 

That  the  legislature  lacks  time  is  axiomatic.  The  community  and  con- 
ditions rob  the  legislator  of  his  hours.  It  is  not  the  willful  sin  of  the 
representative  that  he  gives  heed  to  the  thousand  voices  that  constantly 
call  to  him  from  his  constituents.  From  every  hamlet  in  the  state,  from 
every  township  and  city,  from  every  corporation  office,  flows  a  stream  of 
bills  to  the  honorable  representatives  of  the  various  districts,  and  on  the 
mad  current  of  this  stream  are  rushed  forward  bills,  members,  and  pub- 
lic. The  veto  of  the  governor  and  the  efforts  of  the  few  able  members 
cannot  dam  this  annual  overflow  of  our  legislative  Nile.  Unfortunately 
the  silt  that  the  recession  of  opinion  leaves  after  the  adjournment  of  the 
legislature  reeks  with  the  unwholesome  odor  of  bad  laws,  of  foolish  laws, 
and  of  vicious  laws.  This  deluge  pours  forth  from  the  people ;  it  is  not 
the  creation  of  the  members. 

These  are  the  conditions  from  which  modern  legislatures  and  their 
work  arise. 

Instead  of  setting  ourselves  to  the  task  of  bettering  the  conditions  and 
making  scientific  legislation  possible,  we  have  turned  elsewhere  for  relief. 
First,  we  have  tried  to  minimize  legislation  by  biennial  sessions,  and  some 
have  even  suggested  quadrennial  sessions,  and  standing  commissions  for 
enacting  orders  which  should  stand  until  the  meeting  of  a  decennial  leg- 
islature. This  tendency  is  not  in  consonance  with  the  spirit  of  a  republic. 
The  evil  we  combat  is  not  legislation,  but  unwise  legislation.  Legislation 
is  a  vital  function  of  the  body  politic.  And  legislation  by  representation 
is  the  life  blood  of  a  republic.  We  dare  not  allow  the  legislative  organ  to 
atrophy ;  we  must  help  it  to  greater  specialization,  and  thus  follow  the 
laws  of  evolution.  The  first  step  in  this  development  was  the  committee 
system.  That  is  now  outgrown.  The  next  step  must  be  toward  a  still 
greater  degree  of  specialization.  The  function  of  the  lobby  must  be 
absorbed  by  legitimate  legislative  organs. 

Second,  we  have  become  accustomed  to  view  the  courts  and  not  the 
law  as  the  bulwark  of  our  freedom.    The  courts  stand  between  the  people 


56  AMERICAN   STATE  GOVERNMENT 

and  the  people's  legislature.  They  ward  off  the  evil  effect  of  pernicious 
laws.  It  is  anomalous  that  a  free  people  should  need  a  court  of  justice 
to  save  it  from  the  destructive  forces  of  its  chosen  lawmakers.  We  are 
drifting  from  the  Saxon  toward  the  Roman  ideal,  when  the  court  becomes 
both  the  lawmaker  and  the  judge. 

Our  theory  of  legislation  by  representation  is  not  wrong,  but  our  prac- 
tice of  the  theory  is  antiquated.  Yet  even  with  our  present  crowded 
calendars,  and  lobbies,  and  party  bosses,  and  corporate  omnipotence, 
noble  results  can  be  attained  if  the  people  are  not  supine.  After  all,  it 
all  lies  with  the  people.  They  can  dignify  the  office  of  lawmaker  by 
choosing  only  the  honest  and  the  able ;  they  can  degrade  it,  they  have 
degraded  it,  by  choosing  the  average,  the  mediocre,  the  vicious,  and  the 
foolish.  All  of  our  political  evils  feed  upon  the  indifference  of  the  people. 
Popular  demand  is  the  ultimate  source  of  good  law  ;  popular  indifference 
is  the  immediate  source  of  bad  law. 


FINANCIAL  PROCEDURE  IN  LEGISLATURES^ 

By  Ernest  L.  Bogart 

[The  methods  of  financial  legislation  in  the  state  legislatures  are  full  of  con- 
fusion and  are  indeed  in  urgent  need  of  systematization.  There  is  a  growing 
tendency  to  make  permanent  appropriations  for  certain  administrative  and 
educational  tendencies  of  the  state.  In  some  states  the  disadvantages  and  dan- 
gers of  the  lack  of  concentration  have  been  recognized  and  steps  have  been 
taken  to  bring  all  financial  legislation  under  the  supervision  of  one  committee.] 

In  New  York  the  Committee  on  Ways  and  Means  prepares  two  bills,  — 
the  annual  appropriation  bill  and  the  supply  bill.  Of  these  the  former 
includes  the  permanent  appropriatic^ns,  such  as  the  salaries  of  the  state 
officials,  fixed  appropriations  to  state  institutions,  etc. ;  the  supjily  bill 
includes  indeterminate  and  changing  items  of  expenditure,  such  as  appro- 
priations for  improvements  on  tlic  canals,  new  state  buildings,  etc.  The 
grants  made  by  the  appropriation  bill  are  not  good  luitil  the  following 
October,  while  those  made  by  the  supply  bill  may  be  drawn  upon  imme- 
diately after  its  passage.  As  noted  before,  the  general  appropriation  bill 
is  passed  toward  the  beginning  or  middle  of  the  session,  or  at  least  comes 
up  for  discussion  by  that  time ;  the  supply  bill  is  usually  printed  at  the 
end  of  the  session,  just  in  time  to  meet  the  constitutional  requirements, 
and  is  then  rushed  through  without  due  examination  or  debate.  It  is 
therefore  never  possible  to  determine  exactly  what  the  appropriations  of 
the  legislature  have  amounted  to  until  the  very  end  of  the  session ;  or, 
indeed,  even  then,  for  many  bills  making  appropriations  of  the  ])ublic 

1  From  an  article  in  tin-  .  himi/s  of  the  American  Academy,  September,  iSy^.  Reprinted 
by  permission. 


THE  LEGISLATURE  57 

money  are  every  year  left  in  the  hands  of  the  governor  after  the  adjourn- 
ment of  the  legislature,  to  receive  his  signature.  Not  until  these  bills  are 
finally  disposed  of,  therefore,  can  the  amount  of  the  year's  appropriations 
be  exactly  determined.  For  all  practical  purposes,  however,  the  calcula- 
tion made  at  the  end  of  the  session  suffices. 

There  are  some  portions  of  the  public  expenditure  which  are  not  de- 
pendent on  the  annual  grants  of  the  legislature,  being  provided  for  by 
statutes  that  run  without  limit  of  date. 

In  the  ordinary  financial  transactions  of  government  it  is  the  custom  to  pre- 
pare a  budget  giving  all  the  receipts  and  then  appropriating  these  receipts  by 
grant  among  fixed  objects  of  expenditure.  Not  so  in  the  United  States.  In 
most  of  our  commonwealths  there  is  no  general  table  of  receipts  to  be  appro- 
priated by  legislative  grant  for  definite  purposes.  On  the  contrary,  the  receipts 
are  divided  among  a  number  of  separate  accounts  called  funds,  and  the  expenses 
again  are  defrayed  out  of  these  various  fund  receipts,  each  of  these  accounts 
being  kept  separate  from  the  others.^ 

The  number  of  funds  is  entirely  arbitrary,  ranging  from  two  to  forty- 
six.  Sometimes  new  funds  are  added  by  every  legislature  when  it  is  de- 
sired to  take  certain  classes  of  receipts  out  of  the  general  revenue  and 
to  place  them  in  fixed  categories  beyond  the  reach  of  legislative  whim. 
In  Georgia  and  Maine  we  find  a  number  of  so-called  funds  which  apply 
only  to  expenses  and  simply  denote  so  many  purposes  of  appropriation. 

The  proportion  of  those  parts  of  the  public  expenditures  and  receipts 
which  do  not  require  to  be  legislated  upon  annually,  but  which  are  pro- 
vided for  by  statutes  which  run  without  limit  of  date,  differs  greatly  in 
different  states. 

There  is  no  apparent  rule  in  the  matter  which  differentiates  the  com- 
monwealths according  to  either  age  or  geographical  position,  unless  it  be 
that  the  older  commonwealths  provide  for  their  expenditure,  and  the  newer 
commonwealths  for  their  receipts,  by  means  of  permanent  statutes  rather 
than  by  current  legislation.  In  Kansas,  Mississippi,  Nebraska,  Nevada, 
Tennessee,  Texas,  and  Washington  all  of  the  commonwealth  expenditures 
are  made  in  virtue  of  current  legislation  ;  in  Indiana,  Kentucky,  Pennsyl- 
vania, South  Dakota,  and  Utah  almost  all  are  so  made ;  in  Michigan 
and  Montana  three  fourths  ;  in  Minnesota  and  North  Dakota  about  three 
fifths ;  in  California,  Colorado,  and  West  Virginia  one  half.  On  the  other 
hand.  South  Carolina  and  Vermont  provide  for  nearly  all  of  their  expend- 
itures by  permanent  statutes ;  Iowa  and  New  Hampshire  so  provide  for 
three  fourths  of  theirs.  When  we  turn  to  the  revenues  of  the  common- 
wealths and  inquire  how  that  is  determined,  we  find  a  larger  proportion 
of  commonwealths  establishing  revenue  by  means  of  statutes  which  run 
without  limit  than  was  the  case  with  the  public  expenditures.  North 
Dakota,  Oklahoma,  Pennsylvania,  and  West  Virginia  obtain  all  their  com- 
monwealth receipts  in  virtue  of  permanent  statutes ;  Kentucky,  South 

1  E.  R.  A.  Seligman,  Finance  Statistics  of  the  American  Commonwealths,  p.  5. 


58  AMERICAN  STATE  GOVERNMENT 

Dakota,  and  Washington  raise  almost  all  of  theirs  thus ;  Vermont  and 
Massachusetts  fourth  fifths  and  two  thirds  of  theirs  respectively ;  Colo- 
rado and  South  Carolina  each  one  half.  On  the  other  hand,  California, 
Indiana,  Kansas,  Mississippi,  Nebraska,  and  Tennessee  raise  all  revenue 
by  means  of  current  legislation ;  Michigan  all  but  educational  funds ; 
Nevada  and  Utah  almost  all  thus  ;  Montana  and  New  Hampshire  three 
fourths  and  two  thirds  respectively  of  theirs. 

"  The  General  Fund  is  found  in  all  the  commonwealths,  and  corre- 
sponds to  the  budget  of  most  governments.  It  consists  of  all  the  ordinary 
receipts  not  especially  appropriated  to  other  funds,  and  thus  serves  as  a 
sort  of  dragnet  of  commonwealth  finance."^  It  will  thus  be  seen  that  it 
is  only  over  the  General  Fund  that  the  legislature  can  exercise  unrestrained 
control,  and  in  proportion  as  the  amount  of  revenue  which  flows  into  this 
is  diminished  by  permanent  grants  to  other  funds,  just  to  that  extent  is 
the  financial  independence  of  the  legislature  decreased.  This  is  especially 
true  of  those  commonwealths  where  the  rate  of  taxation  is  limited  by 
statute  or  constitutional  provision,  since  in  these  the  amount  of  state  rev- 
enue is  fixed,  and  can  grow  only  with  the  increase  in  value  of  the  taxable 
property  of  the  state,  or  by  finding  new  sources  of  revenue. 

The  main  source  of  revenue  for  commonwealth  purposes  is  the  general 
property  tax.  Usually  a  certain  percentage  of  the  general  taxes  or  a 
special  commonwealth  tax  is  devoted  to  the  support  of  the  free  public 
schools ;  in  a  number  of  commonwealths  a  poll  tax  of  small  amount  is 
levied  for  this  or  a  similar  purpose.^  In  the  same  manner  the  proceeds 
of  other  taxes  or  sources  of  revenue  are  devoted  to  certain  specific  ends, 
and  are  removed  entirely  from  the  power  of  the  legislature  to  change 
them.  Thus,  though  the  legislature  may  nominally  dispose  of  large  sums 
and  make  large  grants  to  various  objects,  their  real  authority  is  very 
much  circumscribed.  This  is  especially  true  where  any  large  part  of  the 
revenue  is  derived  from  trust  or  investment  funds,  and  particularly  so  if 
the  proceeds  of  these  funds  arc  devoted  by  statute  to  some  specific  object. 
Appropriations  made  under  such  statutes  are  placed  on  the  annual  appro- 
priation bills  and  are  submitted  to  the  finance  committees  who  have,  how- 
ever, no  power  to  materially  alter  them.  They  can,  at  most,  run  up  or 
down  the  scale  of  a  certain  number  of  appropriations  which  must  in  any 
case  be  kept  up.  No  money  can  be  drawn  from  the  public  treasury  ex- 
cept upon  appropriation  made  by  the  legislature,  so  all  grants  must  be 
acted  on  at  least  biennially. 

When  the  appropriation  and  supply  bills  are  introduced  to  the  assembly, 
which  is  usually  done  on  a  date  before  determined  upon,  the  assembly 
immediately  resolves  itself  into  committee  of  the  whole.  The  bills  are  then 
considered  item  by  item,  and  section  by  section,  criticisms  and  suggestions 
being  very  freely  offered  by  members  of  the  committee.  The  bills  are 
defended  by  the  chairman  of  the  Committee  on  Ways  and  Means,  and 

'  Seligman,  Finance  Statistics,  p.  7.  2  See  Scligman  for  list  of  funds,  etc. 


THE  LEGISLATURE  59 

explanations  of  new  appropriations  or  changes  in  the  old  are  made  by 
him.  It  is  always  the  endeavor  of  the  Ways  and  Means  Committee  to  have 
their  bills  passed  with  as  little  alteration  as  possible,  and  to  this  end  they 
devote  all  their  energies.  It  shows  not  only  that  they  enjoy  the  confi- 
dence of  the  legislature,  but  also  that  they  are  in  touch  with  their  con- 
stituents and  familiar  with  their  needs,  and  upon  this  they  particularly 
pride  themselves. 

This  is  the  nearest  approach  to  the  responsible  English  ministry,  upon 
the  acceptance  of  whose  budgets  depends  their  stay  in  office,  which  we 
possess.  It  is,  however,  less  a  matter  of  responsibility  with  our  Committee 
on  Ways  and  Means  than  a  desire  to  make  political  capital  out  of  it ; 
to  be  able  to  point  to  the  record  made  as  chairman  of  that  committee 
when  putting  forward  a  claim  to  the  nomination  for  governor  next  term. 

The  assembly  is  invariably  delayed  with  amendments  or  with  bills  con- 
taining new  appropriations  by  individual  members.  Members  with  pet 
little  appropriation  bills  of  their  own  endeavor  to  have  them  accepted  by 
the  Committee  on  Ways  and  Means,  and  to  have  them  inserted  in  the 
supply  bill,  as  they  then  stand  a  better  chance  of  being  passed  than  if 
they  were  exposed,  alone  and  unsupported,  to  the  fire  of  criticism  of  the 
House.  Many  of  the  states  have  inserted  provisions  in  their  constitutions 
forbidding  the  inclusion  in  the  general  appropriation  bill  of  any  appropria- 
tions except  those  "  for  the  ordinary  expenses  of  the  executive,  legislative, 
and  judicial  departments  of  the  state,  interest  on  the  public  debt,  and  for 
public  schools.  All  other  appropriations  shall  be  made  by  separate  bills, 
each  embracing  one  subject."  This  provision  prevents  also  the  addition 
of  "  riders  "  to  the  general  appropriation  bills.  It  is  found  in  the  consti- 
tutions of  Alabama,  Arkansas,  California,  Colorado,  Georgia,  Illinois, 
Missouri,  Montana,  North  Dakota,  Pennsylvania,  South  Dakota,  West 
Virginia,  and  Wyoming.  A  new  section  was  inserted  in  the  revised  con- 
stitution of  New  York,  which  aims  to  prevent  this  abuse  in  that  state.  It 
is  as  follows :  "  No  provision  or  enactment  shall  be  embraced  in  the  an- 
nual appropriation  or  supply  bill,  unless  it  relates  specifically  to  some 
particular  appropriation  in  the  bill ;  and  any  such  provision  or  enactment 
shall  be  limited  in  its  operation  to  such  appropriation." 

Although  in  accordance  with  a  long-established  precedent,  bills  appro- 
priating money  usually  originate  in  the  lower  branch  of  the  legislature, 
the  Senate  has  always  reserved  to  itself  the  fullest  possible  privileges  in 
the  matter  of  amendments  to  these  as  well  as  all  other  bills.  The  Senate 
invariably  makes  amendments,  if  for  no  other  reason  than  to  show  its 
right  to  do  so,  and  to  justify  the  popular  belief  that  the  Senate  is  a  more 
competent  body  than  the  assembly.  There  is  not  that  great  difference 
of  opinion  in  the  two  branches,  however,  as  to  the  proper  size  of  the 
appropriations  in  our  state  legislatures  which  distinguishes  the  passage 
of  the  federal  appropriation  bill  by  Congress.  In  the  state  legislature  it 
is  difficult  to  say  which  is  the  more  liberal  or  economical,  though  in  the 


6o  AMERICAN   STATE  GOVERNMENT 

long  run  the  Senate  is  probably  the  more  conservative.  As  has  been 
noted  before,  only  four  states  have  constitutional  provisions  as  to  the 
place  of  origination  of  appropriation  bills.  When  such  bills  reach  the 
Senate  after  having  been  sent  from  the  assembly,  they  are  referred  first 
to  the  Finance  Committee,  and  then  reported  by  it  to  the  Senate.  Their 
treatment  in  the  Senate  is  similar  to  that  in  the  lower  branch,  and  after 
passing  the  Senate  they  are  returned  with  their  new  figures  and  amend- 
ments to  the  assembly. 

In  case  the  bills  as  returned  are  not  accepted  by  the  assembly,  a  con- 
ference committee  is  appointed  of  members  from  each  House  to  adjust 
the  differences.  They  seldom  fail  to  agree,  and  more  often  than  not  adopt 
the  assembly's  figures  in  the  bill  they  finally  report.  It  happens  very 
infrequently  that  supplies  are  refused  because  of  a  failure  to  agree.  The 
same  mode  of  procedure  is  followed  in  all  the  states  in  this  respect. 

There  is  not  the  same  chronic  complaint  of  underappropriations  heard 
in  our  state  legislatures  as  in  the  case  of  Congress,  where  a  deficiency 
bill  is  to  be  considered  as  regularly  as  the  annual  session  opens.  In  fact, 
there  is  greater  danger  of  too  large  than  of  too  small  appropriations. 
Toward  the  end  of  the  session,  however,  a  supplemental  supply  bill  is 
often  introduced  to  make  provision  for  deficiencies  under  the  other 
grants  or  provide  for  new  items  of  appropriation. 

Such  is,  in  brief,  the  method  of  dealing  with  general  appropriation  bills 
in  the  New  York  state  legislature.  P'ar  different  is  the  treatment  of  in- 
dividual appropriation  bills  introduced  by  members.  As  soon  as  the  com- 
mittees are  organized  any  member  can  introduce  bills,  and  the  right  is 
practically  without  limit  until  toward  the  close  of  a  session  ;  and  then  only 
because  of  the  physical  impossibility  on  the  part  of  the  committees  of  con- 
sidering new  bills  and  the  practical  certainty  that  they  will  be  "  smothered" 
if  they  are  referred.  Private  appropriation  bills  are  not  necessarily  referred 
to  the  Committee  on  Ways  and  Means,  as  might  be  expected,  but  to  the 
committee  on  canals,  cities,  or  what  not,  for  which  the  appropriation  is 
designed.  In  other  words,  if  a  bill  making  an  appropriation  for  deepen- 
ing the  Erie  Canal  in  a  certain  locality  were  introduced  by  a  member,  it 
would  be  referred  to  the  Committee  on  Canals  and  reported  by  them  to 
the  House.  As  such  a  committee  is  made  up  of  men  who  live  along  the 
borders  of  the  canal  and  who  are  pledged  to  their  constituents  to  spend 
money  on  it,  there  is  little  chance  of  the  bill  being  unfavorably  reported. 
It  is  chiefiy  in  connection  with  these  bills  that  "  k)gr()lling,"  as  this  ex- 
change of  political  favors  is  called  ("  you  roll  my  log  and  I  '11  roll  yours  "), 
occurs,  and  of  course  the  rooms  of  these  committees  arc  the  chief  scene 
of  this  sport.  Mississippi  is  the  only  state  whose  constitution  recog- 
nizes the  existence  of  this  evil  and  attempts  to  prohibit  it  by  legislative 

J  In  a  recent  legislature  one  of  the  members,  on  being  asked  how  he  was  going  to  vote 
on  a  certain  rather  questionable  measure  making  a  large  grant  of  public  money  for  purely  local 
purposes,  replied  that  "  he  had  never  voted  against  an  appropriation  bill  during  his  entire 
term  and  he  would  not  vote  against  this."   And  he  did  not  stand  alone  in  this  position. 


THE  LEGISLATURE  6 1 

enactment.  "  Logrolling "  is  there  defined  as  a  felony,  punishable  by 
imprisonment  of  from  one  to  ten  years. 

Hearings,  usually  anything  but  formal,  are  given  to  interested  parties 
on  proposed  bills,  and  it  is  often  possible  to  influence  the  chairman  of  a 
committee  to  report  favorably.  They  are  seldom  averse  to  so  reporting 
appropriation  bills.  When  a  day  is  appointed  by  a  committee  for  hearings 
on  a  proposed  bill,  notice  is  given  to  the  advocates  of  the  bill ;  and  if,  by 
any  happy  accident,^  adversaries  to  the  bill  know  that  a  measure  is  pend- 
ing which  they  wish  to  oppose,  they  also  have  a  chance  to  be  heard. 
There  is  no  attempt  made  to  take  proof,  and  the  treatment  of  bills  at 
these  hearings  is  anything  but  judicial.  If  the  bill  involves  large  interests, 
the  more  effective  work  is  done  by  trained  lobbyists.  After  a  bill  has 
reached  the  legislature,  too,  its  course  may  be  and  usually  is  favored  by 
lobbying.  So  great  had  this  latter  evil  become  in  some  of  our  states  that 
in  three  of  them  — ■  California,  Georgia,  and  Oregon  —  lobbying  was  de- 
clared a  felony.    In  New  York  it  is  forbidden  on  the  floor  of  the  House  ! 

The  length  of  time  for  which  appropriations  are  granted  and  during 
which  they  are  available  varies  in  different  states.  In  New  York,  and  in 
eight  other  states,  the  constitution  provides  that  all  payments  under  any 
specific  appropriation  must  be  made  within  two  years  of  the  passage  of 
such  appropriation  act.  All  balances  then  unexpended  revert,  usually,  to 
the  General  Fund,  unless  reappropriated.  In  sixteen  other  commonwealths 
the  period  is  limited  by  legislative  enactment  to  two  years,  or  a  similar 
period  terminating  after  the  opening  of  the  next  session  of  the  legislature. 
In  six  of  the  commonwealths  appropriations  are  good  until  they  are  ex- 
hausted or  until  the  act  making  them  is  repealed.  I  could  find  no  men- 
tion of  the  subject  in  either  the  constitutions  or  statute  law  of  the  remain- 
ing commonwealths,  so  that  we  may  infer  that  no  time  limit  is  set  to  the 
period  of  their  availability. 


METHODS  AND  CONDITIONS  OF  LEGISLATION'^ 

By  James  Bryce 

I.  The  demand  for  legislation  has  increased  and  is  increasing  both 
here  and  in  all  highly  civilized  countries. 

II.  The  task  of  legislation  becomes  more  and  more  difficult,  owing  to 
the  complexity  of  modern  civilization,  the  vast  scale  of  modern  industry 
and  commerce,  the  growth  of  new  modes  of  production  and  distribution 

1  A  gentleman,  whose  business  requires  him  to  keep  himself  posted  on  the  various  meas- 
ures before  the  legislature,  informs  me  that  he  has  for  years  paid  a  large  annual  sum  to  a 
certain  man  m  Albany,  whose  sole  business  it  is  to  keep  track  of  all  bills  introduced  in  the 
legislature  and  notify  his  client  when  any  which  he  considers  injurious  to  the  latter's  interests 
are  brought  before  the  committees.  This  man  has  a  large  clientage,  by  whom  he  is  paid  for 
work  which  should  be  performed  by  the  legislature.  He  keeps  a  large  staff  of  clerks  busy 
and  draws  a  large  income  from  this  business. 

2  From  an  address  to  the  New  York  Bar  Association,  1908. 


62  AMERICAN   STATE  GOVERNMENT 

that  need  to  be  regulated,  yet  so  regulated  as  not  to  interfere  with  the 
free  play  of  individual  enterprise. 

III.  Many  of  the  problems  which  legislation  now  presents  are  too 
hard  for  the  ordinary  members  and  even  for  the  abler  members  of  legis- 
lative bodies,  because  they  cannot  be  mastered  without  special  knowledge. 
(It  may  be  added  that  in  the  United  States  a  further  difficulty  arises 
from  the  fact  that  legal  skill  is  often  required  to  avoid  transgressing  some 
provision  of  the  federal  or  a  state  constitution.) 

IV.  The  above  conditions  make  it  desirable  to  have  some  organized 
system  for  the  gathering  and  examination  of  materials  for  legislation,  and 
especially  for  collecting  the  laws  passed  in  other  countries  on  subjects  of 
current  importance. 

V.  To  secure  the  pushing  forward  of  measures  needed  in  the  public 
interest,  there  should  be  in  every  legislature,  arrangements  by  which  some 
definite  person  or  body  of  persons  becomes  responsible  for  the  conduct 
of  legislation. 

VI.  Every  modem  legislature  has  more  work  thrown  on  it  than  it  can 
find  time  to  handle  properly.  In  order,  therefore,  to  secure  sufficient 
time  for  the  consideration  of  measures  of  general  and  permanent  appli- 
cability, such  matters  as  those  relating  to  the  details  of  administration 
or  in  the  nature  of  executive  orders  should  be  left  to  be  dealt  with  by 
the  administrative  department  of  government,  under  delegated  powers, 
possibly  with  a  right  to  disapprove  reserved  to  the  legislature. 

VII.'  Similarly,  the  more  detailed  rules  of  legal  procedure  ought  to  be 
left  to  the  judicial  department  or  some  body  commissioned  by  it,  instead 
of  being  regulated  by  statute. 

VIII.  Bills  of  a  local  or  personal  nature  ought  to  be  separated  from 
bills  of  general  applicability  and  dealt  with  in  a  different  and  quasi-judicial 
way. 

IX.  Arrangements  ought  to  be  made,  as,  for  instance,  by  the  creation 
of  a  drafting  department  connected  with  a  legislature  or  its  chief  com- 
mittees, for  the  putting  into  proper  legal  form  of  all  bills  introduced. 

X.  Similarly,  a  method  should  be  provided  for  rectifying  in  bills  before 
they  become  law  such  errors  in  drafting  as  may  have  crept  into  them 
during  their  passage. 

XI.  When  any  bill  of  an  experimental  kind  has  been  passed,  its  work- 
ings should  be  carefully  watched  and  periodically  reported  on  as  respects 
both  the  extent  to  which  it  is  actually  enforced  (or  found  cnforcible)  and 
the  practical  results  of  the  enforcement.  A  department  charged  with  the 
enforcement  of  any  act  would  naturally  be  the  proper  authority  to  report. 

XII.  In  order  to  enable  both  the  legislature  and  the  people  to  learn 
what  the  statute  law  in  force  actually  is,  and  thereby  to  facilitate  good 
legislation,  the  statute  law  ought  to  be  periodically  revised,  and,  as  far  as 
possible,  so  consolidated  as  to  be  brougiit  into  a  compact,  consistent,  and 
intelligible  shape. 


THE  LEGISLATURE  6^ 


LEGISLATIVE  REFERENCE  DEPARTMENT  ^ 

By  Charles  McCarthy 

Legislative  Reference  Work 

The  Legislative  Reference  Department  of  the  Wisconsin  Library 
Commission  was  established  in  a  small  way  in  190 1.  It  became  appar- 
ent at  once  that  the  demands  of  this  library  were  of  a  peculiar  nature, 
which  could  not  be  readily  met  by  the  ordinary  library  methods  or  by  the 
ordinary  library  material. 

A  plan  was  devised  which  has  been  since  carried  out  as  far  as  the 
resources  given  by  the  legislature  would  permit.  We  found  that  there 
was  no  cooperation  between  the  different  states  of  this  Union  in  the 
matter  of  getting  the  history  of  legislation.  We  found  that  there  was  a 
constant  demand  for  a  history  of  what  had  occurred  in  Europe  or  in  any 
state  of  the  Union,  upon  a  certain  subject  of  interest  to  the  people  of 
this  state.  We  tried  to  supply  this  demand  by  getting  such  indexes  of 
uf)-to-date  legislation  as  were  published,  by  getting  the  bills  from  other 
states  as  well  as  the  documents  explanatory  of  legislative  movements  in 
other  states,  and  arranging  these  under  the  subjects  so  they  would  be 
immediately  at  the  service  of  all  who  desired  to  see  them.  We  soon  found 
that  even  this  material  did  not  solve  the  problem.  We  found  it  necessar}' 
to  clip  newspapers  from  all  over  the  country  and  to  put  the  clippings  in 
book  form,  to  index  them  carefully,  and  put  them  also  with  the  subjects. 
We  went  over  our  own  bills  and  carefully  indexed  them  back  for  four 
sessions,  and  by  noting  the  subjects  which  were  contained  in  those  bills 
we  anticipated  the  problems  with  which  the  legislature  had  to  grapple. 
These  problems  or  special  subjects  we  carefully  worked  up  through  the 
most  minute  detail.  It  was  comparatively  easy  to  get  laws  and  court 
cases,  but  it  was  a  far  harder  job  to  find  how  those  laws  were  adminis- 
tered, and  to  find  the  weaknesses  in  them  and  to  note  as  far  as  possible 
how  they  could  be  adapted  to  our  use  here. 

Our  short  experience  has  taught  us  many  things.  We  have  been  con- 
vinced that  there  is  a  great  opportunity  to  better  legislation  through  work 
of  this  kind, —  that  the  best  way  to  better  legislation  is  to  help  directly 
the  man  who  makes  the  laws.  We  bring  home  to  him  and  near  to  him 
everything  which  will  help  him  to  grasp  and  understand  the  great  eco- 
nomic problems  of  the  day  in  their  fullest  significance,  and  the  legislative 
remedies  which  can  be  applied  and  the  legislative  limitations  which  exist. 
We  must  take  the  theory  of  the  professors  and  simplify  it  so  that  the 
layman  can  grasp  it  immediately  and  with  the  greatest  ease.  The  legis- 
lator has  no  time  to  read.  His  work  is  new  to  him,  he  is  beset  with 
routine  work,  he  has  to  have  conferences  with  his  friends  upon  political 

1  From  a  bulletin  of  the  Wisconsin  Legislative  Reference  Department,  1908. 


64  AMERICAN  STATE  GOVERNMENT 

matters,  he  is  beset  by  ofifice  seekers  and  lobbyists,  and  he  has  no  time  to 
study.  If  he  does  not  study  or  get  his  studying  done  for  him,  he  will 
fall  an  easy  prey  to  those  who  are  looking  out  to  better  their  own 
selfish  ends.  Therefore  we  must  shorten  and  digest  and  make  clear  all 
information  that  we  put  within  his  reach. 

We  must,  first  of  all,  get  near  to  the  legislator,  even  as  the  lobbyist 
does.  I  do  not  mean  that  we  must  use  the  evil  methods  of  the  lobbyist, 
but  we  must  win  the  legislator's  confidence  and  his  friendship  and  under- 
stand him  and  his  prejudices.  We  must  not  be  arrogant,  presumptive, 
opinionated,  or  dogmatic.  We  are  dealing  with  men  who  are  as  a  rule 
keen  and  bright,  who  as  a  rule  have  made  a  success  of  business  life.  We 
must  always  remember  that  we  are  but  clerks  and  servants  who  are 
helping  these  men  to  gather  data  upon  things  upon  which  we  have 
worked,  as  they  have  worked  at  their  business.  We  must  be  careful  to 
keep  our  private  opinions  to  ourselves  and  let  the  evidence  speak  for 
itself.  We  are  not  doing  this  work  to  convert,  but  to  help  and  to  clear 
up.  No  busy  man  can  keep  track  of  legislation,  and  especially  complex 
legislation  of  our  modem  times,  in  one  state,  let  alone  half  a  hundred 
states.  It  is  our  work  to  do  that, —  to  find  out  the  history  of  particular 
pieces  of  legislation,  to  find  out  how  a  law  works,  to  get  the  opinions  of 
just  lawyers,  professors,  doctors,  publicists,  upon  these  laws  and  to  put 
their  opinions,  well  digested,  in  such  form  that  it  can  be  readily  used  and 
understood  by  any  legislator  even  in  the  whirl  and  confusion  of  the 
legislative  session. 

Some  essentials  in  carrying  on  this  work  may  be  summarized  briefly : 

1.  The  first  essential  is  a  selected  library  convenient  to  the  legislative 
halls.  This  library  should  consist  of  well-chosen  and  selected  material. 
A  large  library  is  apt  to  fail  because  of  its  too  general  nature  and  be- 
cause it  is  liable  to  become  cumbersome.  This  library  should  be  a  deposi- 
tory for  documents  of  all  descriptions  relating  to  any  phase  of  legislation 
from  all  states,  federal  government,  and  particularly  from  foreign  coun- 
tries like  England,  Australia,  France,  Germany,  and  Canada.  It  should 
be  a  place  where  one  can  get  a  law  upon  any  subject  or  a  case  upon  any 
law  very  quickly.  It  is  very  convenient  to  have  this  room  near  a  good  law 
library.  Books  are  generally  behind  the  times,  and  newspaper  clippings 
from  all  over  the  country,  and  magazine  articles,  court  briefs,  and  letters 
must  supplement  this  library  and  compose  to  a  large  extent  its  material. 

2.  A  trained  librarian  and  indexer  is  absolutely  essential.  Tlie  material 
is  largely  scrappy  and  hard  to  classify.  We  need  a  person  with  a  liberal 
educati(jn,  who  is  original,  not  stiff,  who  can  meet  an  emergency,  and 
who  is  tactful  as  well. 

3.  The  material  is  arranged  so  lliat  it  is  compact  and  accessible.  Do 
not  be  afraid  to  tear  up  books,  documents,  pamphlets,  clippings,  letters, 
manuscripts,  or  other  material.  Minutely  index  this  material.  Put  it  under 
the  subjects.    Legislators  have  no  time  to  read  large  books.    We  have  no 


THE  LEGISLATURE  65 

time  to  hunt  up  many  references  in  different  parts  of  a  librar}'.  They 
should  be  together  as  far  as  possible,  upon  every  subject  of  legislative 
importance. 

4.  Complete  index  of  all  bills  which  have  not  become  laws  in  the  past 
should  be  kept.  This  saves  the  drawing  of  new  bills  and  makes  the 
experience  of  the  past  cumulative. 

5.  Records  of  vetoes,  special  messages,  political  platforms,  political 
literature,  and  other  handy  matter  should  be  carefully  noted  and  arranged. 
Our  legislator  often  wants  to  get  a  bill  through,  and  we  must  remember 
that  he  often  relies  as  much  upon  political  or  unscientific  arguments  as 
we  do  upon  scientific  work.  He  should  be  able  to  get  hold  of  his  political 
arguments  if  he  wants,  and  the  political  literature  from  all  parties  upon 
all  questions  should  be  kept  near  at  hand. 

6.  Digests  of  laws  on  ever}'  subject  before  the  legislature  should  be 
made  and  many  copies  kept.  Leading  cases  on  all  these  laws  and  opinions 
of  public  men  and  experts  upon  the  working  of  these  laws  or  upon  the 
defects,  technical  or  otherwise,  should  be  carefully  indexed, *and,  as  far  as 
possible,  published  in  pamphlet  form,  with  short  bibliographies  of  the 
subjects  most  before  the  people. 

7.  The  department  must  be  entirely  nonpolitical  and  nonpartisan  or 
else  it  will  be  worse  than  useless.  If  you  have  the  choice  between  estab- 
lishing a  political  department  and  no  department  at  all,  take  the  latter. 

8.  The  head  of  the  department  should  be  trained  in  economics,  politi- 
cal science,  and  social  science  in  general,  and  should  have  also  a  good 
knowledge  of  constitutional  law.  He  should,  above  all,  have  tact  and 
knowledge  of  human  nature. 

9.  There  should  be  a  trained  draftsman  connected  with  the  depart- 
ment,—  a  man  who  is  a  good  lawyer  and  something  more  than  a  lawyer, 
a  man  who  has  studied  legislative  forms,  who  can  draw  a  bill,  revise  a 
statute,  and  amend  a  bill  when  called  upon  to  do  so.  Such  a  man  work- 
ing with  this  department  and  the  critical  data  which  it  contains  will  be 
absolutely  essential. 

10.  Methods,  {a)  Go  to  the  legislator,  make  yourself  acquainted  with 
him,  study  him,  find  anything  he  wants  for  him,  never  mind  how  trivial, 
accommodate  him  in  every  way.  Advertise  your  department.  Let  every- 
one know  where  it  is  and  what  it  does.  Go  to  the  committees  and  tell 
them  what  you  can  do  for  them.  {F)  It  is  absolutely  essential  that  you 
get  information  ahead  of  time  or  else  you  will  be  of  no  use  in  the  rush. 
Send  a  circular  letter  out  to  legislators  and  tell  them  you  will  get  any 
material  which  will  help  them  in  their  work  before  the  session  begins. 
The  following  is  a  sample  of  such  a  circular : 

Dear  Sir  : 

The  Wisconsin  legislature  of  1901  authorized  the  Wisconsin  Free  Library 
Commission  to  conduct  a  Legislative  Reference  Department,  and  to  gather  and 
index  for  the  use  of  members  of  the  legislature  and  the  executive  officers  of  the 


66  AMERICAN  STATE  GOVERNMENT 

state  such  books,  reports,  bills,  documents,  and  other  material  from  this  and 
other  states  as  would  aid  them  in  their  official  duties. 

The  Legislative  Reference  Library  was  entirely  destroyed  by  the  fire,  but 
much  of  value  to  the  student  of  state  affairs  has  been  collected.  We  desire  to 
make  such  material  of  the  utmost  use,  and  wish  you  to  call  upon  us  for  any  aid 
we  can  give  in  your  legislative  duties. 

If  you  will  inform  us  of  any  subjects  you  wish  to  investigate,  as  far  as  we 
have  the  material,  time,  and  means,  we  will  tell  you : 

1.  What  states  have  passed  laws  on  any  particular  subject. 

2.  Where  bills  for  similar  laws  are  under  discussion. 

3.  What  bills  on  any  subject  have  been  recently  introduced  in  our  legislature. 

4.  W^here  valuable  discussions  of  any  subject  may  be  obtained. 

As  far  as  possible,  with  our  limited  force  and  means,  we  will  send  you 
abstracts  of  useful  material  and  answer  any  questions  pertaining  to  legislative 
matters. 

It  is  not  our  province  to  convince  members  of  the  legislature  upon  disputed 
points.  We  shall  simply  aid  them  to  get  material  to  study  subjects  in  which 
they  are  interested  as  public  officials. 

Make  your  questions  definite.  Our  work  is  entirely  free,  nonpartisan,  and 
nonpolitical,  and  entirely  confidential. 

The  replies  to  such  a  circular  give  you  an  idea  of  what  is  coming. 
Work  for  all  you  are  worth  on  those  topics,  send  out  thousands  of  circular 
letters  to  experts  on  these  topics,  subscribe  to  clipping  bureaus  if  neces- 
sary to  secure  critical  data  from  the  public  at  large.  Gather  statistics 
ahead.  Carefully  search  books  for  significant  and  concise  statements  ;  if 
to  the  point,  copy  or  cut  them  out  and  index  them.  Go  through  the  court 
reports  and  get  the  best  opinions,  (r)  Get  hold  of  libraries  or  individuals 
or  professors  in  other  states  with  whom  you  can  correspond.  Speed  in 
getting  things  to  a  committee  or  an  individual  is  absolutely  necessary. 
Do  not  fail  to  use  the  telegraph.  Get  material, —  facts,  data,  etc., —  and  get 
it  quickly  and  get  it  to  the  point ;  boil  down  and  digest.  I  can  say  again, 
the  legislator  does  not  know  much  about  technical  terms ;  avoid  them, 
make  things  simple  and  clear,  {d)  Employ,  if  you  can,  during  the  session 
a  good  statistician.  He  can  be  of  great  service  in  dealing  with  financial 
bills,  in  estimating  accidents  from  machinery,  or  in  gathering  statistical 
data  of  any  kind.  I  Ic  should  be  a  man  who  can  work  rapidly,  accurately, 
and  to  the  point.  Throughout  all  of  this  work  it  is  absolutely  necessary 
to  get  all  material  absolutely  upon  the  points  at  issue,  {e)  Make  arrange- 
ments with  all  libraries  in  your  city  and  libraries  elsewhere  for  the  loan 
of  books  or  other  material.  You  should  have  every  sort  of  an  index  in 
your  library,  as  well  as  catalogues  of  any  of  the  libraries  with  which  you 
are  corresponding.  (/)  A  correspondence  clerk  and  some  helper  to  paste 
clippings,  mount  letters,  etc.,  are  necessary,  especially  during  the  legisla- 
tive session,  (g)  Keep  your  place  open  from  early  in  the  morning  till 
late  at  night.  Do  everything  in  your  power  to  accommodate  those  for 
whom  you  work. 


THE  LEGISLATURE  67 

I  believe  that  every  such  library  established  should  try  to  specialize  on 
one  great  division  of  legislation.  If  one  place  studies  municipal  govern- 
ment especially  and  another  labor  legislation,  it  would  be  a  very  useful 
arrangement,  as  one  could  go  directly  to  that  library  having  the  most 
expert  Icnowledge  on  one  subject.  Of  course  a  journal  of  comparative 
legislation  is  necessary  to  bring  this  work  into  coordination  in  the  future. 
This  department  in  Wisconsin  cost  $1500  for  the  first  year  and  $4500 
a  year  for  the  last  two  years,  and  now  has  an  appropriation  of  $15,000 
a  year.  The  cost  is  not  large  because  documents  are,  on  the  whole,  very 
cheap,  and  especially  because  we  are  near  the  State  Law  Library  and 
the  State  Historical  Society,  which  kindly  lend  us  much  of  their  material. 

Scope  and  Methods 

Will  such  a  department  help  in  the  betterment  of  legislation  ? 

Let  us  consider  for  a  moment  how  a  law  is  actually  made. 

John  Jones  comes  to  the  legislature.  He  is  a  good  citizen,  a  man  of 
hard  sense,  well  respected  in  his  community.  He  enters  suddenly  from 
the  quiet  of  his  native  village  into  a  new  life.  He  comes  to  live  in  a  new 
community.  He  is  dogged  about  and  worried  by  office  seekers.  His  old 
friends  and  advisers  are  not  around  to  help  him.  He  finds  that  it  is 
necessary  for  him  to  learn  the  ropes.  He  finds  that  if  he  is  to  represent 
his  district,  he  must  introduce  bills,  and  that  he  must  in  some  way  get 
those  bills  through  the  legislature.  He  must,  first  of  all;  get  those  bills 
drawn,  and  never  having  drawn  a  bill  in  his  life  and  not  knowing  how 
such  things  should  be  done,  it  is  very  hard  work,  for  him.  He  is  con- 
fronted with  two  thousand  bills  on  two  thousand  subjects,  legal  and 
economic.  Complex  questions  which  are  not  settled  by  the  greatest 
thinkers  to-day  are  hurled  at  his  head.  Even  scientific  subjects  that  the 
chemist  or  the  physician  or  the  man  of  science  has  had  a  hard  time  to 
deal  with  must  be  met  by  our  John  Jones,  and  that  in  the  hurr\'  and 
rush  of  committee  work,  and  of  his  efforts  to  take  care  of  the  multi- 
tudinous duties  placed  upon  him.  If  he  is  honest,  he  will  try  to  draw  his 
bills  himself,  or  else  he  pays  somebody  to  do  it  for  him ;  but  the  easiest 
way  is  to  consult  somebody  else.  He  finds  around  him  bright  men,  well- 
paid  lawyers,  men  of  legal  standing,  who  are  willing  to  help  him  in  every 
way.  It  is  easier  to  consult  these  bright  men  ;  and  often,  if  he  does  it,  he 
is  lost.  It  is  seldom  that  he  finds  a  true  friend.  They  are  there  to  look 
out  for  their  own  interests,  and  John  Jones  is  legitimate  prey.  To  get  hold 
of  him  is  their  business.  If  he  is  honest  and  by  persistent  courage  and 
sterling  honesty  fights  his  way  through,  —  pushes  his  bills  on  to  become 
laws, —  those  bills,  having  to  do  often  with  complex,  technical  subjects,  and 
being  drawn  by  a  man  unskilled  in  law,  are  thrown  out  by  the  courts. 

Here  then  is  the  situation.    We  see  the  farmer,  our  good  grocerman, 
even  our  small  country  lawyer,  our  successful  manufacturer,  our  man  of 


68  AMERICAN  STATE  GOVERNMENT 

business,  grappling  at  once,  entirely  unprepared,  with  the  problem  of 
making  laws  that  represent  every  phase  of  industrial  life.  A  few  years 
ago  the  simple  legislation  could  be  more  easily  handled  by  these  men ; 
but  now  the  great  problems  of  the  railroads,  the  telegraphs,  the  tele- 
phones, insurance,  the  vast  complex  things  of  our  modern  life,  make  it 
simply  impossible  for  one  man,  however  bright  or  educated  he  may  be, 
to  act  intelligently  upon  one  tenth  of  the  subjects  which  come  before  the 
legislature.  When  some  new  invention  comes  into  being,  legislation  must 
deal  with  it ;  when  some  new  situation  comes  up  through  the  growth  of 
new  industries,  then  some  new  law  must  be  made  restraining  or  encour- 
aging or  in  some  way  regulating  these  new  conditions.  It  all  goes  to 
show  how  unfitted  our  old  representative  government  is  to  meet  the 
conditions  to-day,  and  how  utterly  helpless  any  one  man  is  when  he 
has  to  meet  these  complex  problems. 

Besides  all  these  difficulties  which  I  have  named,  we  must  not  forget 
that  there  are  other  difficulties.  The  federal  Constitution  was  in  a  way  a 
simple  instrument  when  it  was  made,  compared  to  what  it  is  now.  The 
unwritten  constitution  of  the  country,  the  many  decisions  made  by  our 
courts,  have  tended  to  bind  the  action  of  the  state  and  the  legislators  of 
the  state  hand  and  foot.  Again,  the  increasing  distrust  of  our  legislatures 
by  our  citizens  has  resulted  in  immense  state  constitutions  which  are 
nothing  more  than  compiled  statutes,  filled  with  innumerable  restrictions 
upon  the  action  of  the  legislator.  He  is  restrained  in  every  way  by  the 
federal  Constitution,  and  by  his  state  constitution,  and  by  the  hundreds 
and  hundreds  of  cases  interpreting  nearly  every  word  and  nearly  every 
phrase  in  every  law.  Is  it  any  wonder  then  that  there  is  a  cry  that  the 
supreme  court  is  usurping  legislative  functions  and  is  defeating  the  will 
of  the  people?  Does  it  seem  right  that  our  legislative, opinion  should  be 
molded  by  private  interests  because  private  interests  alone  know  how  to 
present  their  case  ?  Does  it  seem  right  that  the  only  help  which  the  legis- 
lator gets  in  his  great  need  is  that  of  the  people  who  are  seeking  gain 
from  the  very  laws  he  is  making,  or  who  are  trying  to  prevent  the  making 
of  effective  law } 

A  committee  is  often  a  judicial  body.  It  sits  in  judgment  upon  private 
bills.  It  gives  rights  and  franchises  that  make  men  wealthy  or  deprive 
men  of  their  property.  Yet  this  court  hears  often  but  one  side  of  an 
argument,  and  has  no  means  of  investigating  the  truth  or  untruth  of  one 
statement  made.  Not  only  that,  but  it  is  subjected  in  its  determinations 
to  a  hundred  influences  to  which  no  judge  is  subjected.  Would  we  allow 
such  a  slate  of  affairs  in  our  private  business  ?  Would  we  tolerate  it  in 
our  judiciary.''  How  are  we  prepared  to  make  that  still  greater  activity 
of  government  which  some  call  "  paternalism  "  .■*  Why,  the  powerful  in- 
terests do  not  have  to  resort  to  bribery  I  Their  ex])erts  can  win  by  the 
irresistible  force  of  argument  ak>ne.  'i'hey  must  hokl  the  balance,  for 
they  have  the  brains  of  the  land  and  pay  well  for  them. 


THE  LEGISLATURE  69 

Is  it  any  wonder  that  many  good  people  throw  up  their  hands  with 
joy  and  say,  "  Thank  God  the  legislature  is  over  "  ?  It  is  not  a  thing  to 
be  joked  about.  Our  papers  make  fun  of  the  legislature  and  its  "  freak  " 
legislation,  but  it  is  a  mighty  serious  state  of  affairs  when  a  people  loses 
confidence  in  its  governing  body. 

The  revelations  of  graft  and  corruption  of  the  last  four  years  should 
convince  us  all  that  we  are  up  against  a  serious  condition,  and  that  we 
must  seek  a  positive  remedy  of  a  more  fundamental  kind  than  has  yet 
been  proposed.  If  these  are  the  conditions  under  which  our  legislative 
opinion  is  formed,  is  it  any  wonder  that  the  will  of  the  people  is  con- 
stantly defeated  ?  Is  it  any  wonder  that  our  laws  are  poor  ?  Is  it  any 
wonder  that  the  clamor  of  public  opinion  fails  to  be  heard  within  our 
legislative  halls  ?  Is  it  any  wonder  that  the  making  of  needed  laws  goes 
on  so  slowly  ?  Now  what  is  the  remedy  for  all  this .''  We  look  around 
about  us  and  find  our  judiciary  composed  of  the  high  men  of  the  state. 
We  have  the  most  profound  respect  for  our  judiciary.  We  are  satisfied 
with  it.  Our  administrative  bodies  have  not  yet  reached  that  high  stand- 
ard, but  we  are  every  day  developing  administrative  bodies  which  are, 
notwithstanding  recent  revelations,  becoming  more  and  more  fit  to  take 
charge  of  the  business  of  the  state,  but  how  about  the  legislature  }  Does 
it  not  seem  reasonable  that  the  law,  which  is  the  expression  of  the  will 
of  the  people  and  upon  which  good  administration  is  founded,  should  be 
scientific, —  should  be  based  upon  the  best  experience  of  all  mankind  ? 
If  our  administration  is  to  be  good  administration,  does  it  not  seem 
ridiculous  that  the  supreme  court,  the  highest  legal  talent  in  the  state, 
should  go  on  day  after  day,  year  after  year,  turning  out  decision  after 
decision  upon  laws  which  are  made  often  by  men  who  have  never  seen 
a  law  book  ?  Does  that  seem  like  business  ?  Does  it  seem  right  that  our 
fundamental  law  should  be  left  to  these  haphazard  conditions  ?  Does  it 
seem  reasonable  that  all  the  talent  should  be  used  in  interpreting  laws, 
in  curing  their  defects,  and  that  absolutely  nothing  should  be  done  in  a 
scientific  way  in  the  making  of  these  laws .-'  Why,  in  building  any  kind 
of  a  structure  to-day  we  use  an  architect !  The  construction  of  a  law  is 
a  far  harder  task  than  the  criticism  of  it,  or  even  the  interpretation  of  it. 
It  involves  the  interpretation  of  it.  It  involves  a  knowledge  of  the  theory 
of  government.  It  involves,  because  of  the  enlarged  sphere  of  govern- 
ment to-day,  a  sound  knowledge  of  economic  conditions. 

We  have  heard  a  great  deal  of  condemnation  of  the  legislature.  It  is 
easy  and  popular,  too,  to  sneer  and  censure  and  to  criticize,  but  we 
have  heard  very  few  suggestions  as  to  a  remedy  put  forth. 

If  private  forces  maintain  bureaus  of  information  for  representatives, 
let  us  have  public  information  bureaus,  open  to  private  and  public  inter- 
ests alike.  If  it  is  hard  to  get  information  because  of  the  great  variety 
of  subjects  now  coming  before  our  legislators,  the  only  sensible  thing  to 
do  is  to  get  experts  to  gather  this  material.    If  business  interests  have 


70  AMERICAN  STATE  GOVERNMENT 

good  lawyers  to  look  after  their  legislation,  the  people  should  secure  the 
same  kind  of  men  to  help  their  representatives.  If  the  business  interests 
secure  statisticians,  engineers,  and  scientific  men,  then  the  public  should 
do  likewise.  If  great  judges  and  great  lawyers  are  constantly  working 
upon  the  problems  of  interpretation  of  laws,  then  surely  men  of  equal 
ability  should  be  consulted  while  those  laws  are  being  constructed. 

This  work  is  now  going  forward  with  great  strides,  and  state  after 
state  is  taking  it  up.  The  legislators  give  it  the  most  enthusiastic  sup- 
port. In  this  work  is  the  great  future  of  the  state  library,  because  the 
state  libraries  are  the  legal  storehouses  of  knowledge  for  our  state  officers 
and  legislators.  The  basis  of  the  work  is  essentially  the  storing  and 
keeping  of  knowledge  ready  for  use,  and  is  not  that  the  highest  aim  of  a 
library  ?  Already  the  Carnegie  Library  at  Pittsburg  has  a  specialist  to 
answer  questions  upon  scientific  subjects.  All  the  state  library  needs  is 
specialists  of  a  like  nature  for  legislative  subjects.  Again,  the  state  library 
is  within  the  legislative  circle  of  which  I  have  spoken.  It  is  now  doing 
this  work  to  some  extent,  and  will  have  only  to  change  its  methods  and 
get  specialists  to  accomplish  the  full  work. 

Again,  the  organization  of  a  new  department  in  the  statehouse  and 
the  duplication  of  books  and  other  material  should  be  avoided  in  the 
interest  of  economy.  The  state  librar}-  is  established,  has  the  material, 
and,  what  is  better,  is  generally  out  of  politics.  An  extension  of  the 
functions  of  the  state  library  is  all  that  is  necessary  in  most  cases. 

Now  what  do  we  expect  from  the  successful  operation  of  a  system 
like  this  ?  We  hope  that  all  legislation  can  be  made  better  and  be  put 
upon  a  more  scientific  basis.  We  look  upon  this  as  simply  a  pure  busi- 
ness operation.  No  one  here  would  buy  land  in  Texas  without  ever 
having  seen  that  land.  You  might  buy  land  in  a  lake  or  in  the  bed  of  a 
river,  if  you  should  use  such  a  process  as  that ;  you  would  at  least  get 
some  one  to  look  up  your  title.  But  we  leave  our  legislators  to  copy  a 
Texas  statute  that  may  be  twenty  years  of  age,  may  have  been  modified 
twenty-five  times,  may  be  entirely  unsuited  to  our  conditions,  and  which 
may  be  in  the  end  unconstitutional, —  we  let  our  legislators  incorporate 
such  statutes  in  our  statute  books  without  a  protest.  It  seems  merely 
common  sense  that  we  should  get  all  ])<)ssible  knowledge  relating  to  that 
statute  for  the  use  of  our  legislators.  In  this  way  legislation  cannot  help 
being  bettered ;  in  this  way  the  dearly  bought  experience  of  one  state  is 
used  for  the  betterment  of  conditions  in  another  state.  In  this  way  the 
best  there  is  can  be  culled  out  from  the  statutes  throughout  the  country 
and  used  for  the  benefit  of  our  people. 

There  is  a  great  cry  against  our  overloaded  constitutions.  Our  con- 
stitutions have  been  purposely  overloaded  because  the  people  who  made 
these  constitutions  wished  to  put  certain  things  in  them  which  could  not 
be  overturned  by  the  caprice  or  corruption  of  legislators.  As  time  goes 
on  and  people  find  that  there  is  a  scientific  department  working  with  the 


THE  LEGISLATURE  7 1 

legislature,  then  the  people  will  again  gain  confidence  in  the  legislature 
and  will  again  trust  the  legislature. 

There  is  a  widespread  agitation  at  the  present  time  for  centralization 
and  nationalization, —  a  movement  which  strives  to  have  one  after  an- 
other of  the  state  functions  taken  over  by  the  national  government.  We 
hear  agitation  about  federal  life  insurance,  we  hear  agitation  about  national 
incorporation  acts,  federal  food  acts,  and  various  forms  of  federal  super- 
vision of  one  thing  or  another. 

I  only  want  to  point  out  to  you  that  as  our  laws  are  made  better  in 
any  way  these  movements  will  stop.  This  great  danger  will  be  overcome. 
The  best  laws  are  those  laws  which  are  near  to  the  people  who  make 
the  laws,  and  the  only  means  for  saving  our  local-option  system  of  state 
government  —  the  only  means  of  keeping  the  federal  government  at 
Washington  from  controlling  our  affairs  —  is  to  make  our  state  laws  bet- 
ter and  better  ;  and  the  only  way  in  which  they  can  be  made  better  is  to 
have  scientific  method  in  the  making  of  them.  Every  business  method 
should  be  used  and  technical  clerical  help  should  be  secured  in  order  that 
the  man  who  makes  the  laws  can  have  the  knowledge  before  him  neces- 
sary to  make  laws  good  and  to  make  laws  just  and  to  make  laws  stand 
for  all  time. 

If  our  state  legislature  gains  in  the  confidence  of  the  people,  so  will 
our  supreme  court  and  our  judicial  bodies  gain  in  the  confidence  of  the 
people.  Our  courts  will  not  be  called  upon  to  make  decisions  which  ap- 
parently defeat  time  and  time  again  the  will  of  the  people.  They  will 
not  be  called  upon  to  turn  down  law  after  law  which  has  been  put  upon 
our  statute  books  often  by  prolonged  and  patient  struggle.  The  laws 
will  be  better  before  they  come  to  the  courts.  Prevention  is  better  than 
cure,  and  ever}'  effort  we  can  put  into  prevention  in  this  case  will  make 
our  laws  better,  and  will  make  it  easier  for  our  courts  to  decide  upon  the 
true  merits  of  the  laws.  Decisions  based  upon  technicalities  will  be  less 
in  number.    Our  judiciary  will  continue  to  be  respected  and  honored. 

Says  the  Montana  Bar  Association  in  a  recent  report :  "  The  time  of 
the  court  is  consumed  in  hearing  discussions  upon  statutory  enactments 
and  determining  what  law  is  in  force  and  what  has  been  repealed.  Liti- 
gation is  thus  delayed,  additional  expense  engendered,  and  private  rights 
rendered  insecure."  \Miat  is  the  remedy  for  such  conditions  ^  Do  these 
conditions  not  demand  that  the  same  skill  used  in  interpreting  the  law 
should  be  used  in  its  construction  ? 

We  have  recently  seen  the  work  of  the  Armstrong  Investigating  Com- 
mittee in  New  York.  No  insurance  law  ever  passed  in  this  country  had 
so  much  effect  upon  insurance  regulation.  That  report  was  made  by 
legislators  and  not  by  state  officials.  We  are  constantly  crying  out  to-day 
against  the  innumerable  state  boards  that  are  being  created.  Boards  have 
been  created  licensing  barbers,  and  licensing  every  trade  and  occupation. 
We  object  to  the  increase  of  commission  government,  and  yet  commission 


72  AMERICAN   STATE  GOVERNMENT 

government  has  increased  because  it  has  been  felt  for  some  time  that 
the  only  way  of  enforcing  laws,  the  only  way  of  doing  special  duties, 
was  to  do  them  by  the  creation  of  new  boards.  And  yet  this  Armstrong 
committee  shows  us  a  way  of  making  laws  and  enforcing  laws,  which  is 
better  than  boards  and  commissions.  If  we  have  some  department  work- 
ing with  our  legislature,  and  have  that  department  work  outside  of  the 
sessions  with  investigating  committees,  then  we  can  be  sure  that  there  is 
always  a  check  upon  the  action  of  our  boards  and  commissions,  and  that 
there  is  always  at  hand  a  remedy  for  evil  in  the  hands  of  the  people 
themselves.  They  can  always  ask  for  an  investigating  committee,  and 
the  report  of  that  committee  will  result  in  good  sound  law. 

At  the  present  time,  in  nearly  all  of  our  states,  an  able  lawyer  will  go 
before  a  committee  composed  of  good  farmers  and  good  merchants,  and 
sometimes,  though  he  may  not  speak  the  truth,  that  committee  is  ab- 
solutely at  the  mercy  of  that  man.  He  can  tell  them  privately  or  before 
the  committee  that  a  certain  bill  is  unconstitutional,  or  has  been  a  failure, 
where  tried.  He  can  defy  individual  members  to  answer  him.  He  has 
behind  him  sometimes  many  clerks  to  gather  statistics  of  all  sorts  for  his 
use  before  that  committee.  What  has  that  committee  to  do  under  the 
circumstances,  and  what  can  the  individual  member  of  that  committee 
do  under  those  circumstances }  What  could  you  do  under  those  circum- 
stances ?  Of  course  the  committeeman  does  not  want  to  make  himself 
ridiculous,  and  sets  the  business  forth  in  a  half-hearted  report,  or  acqui- 
esces in  the  statements  of  the  attorney  before  the  committee.  If  a  de- 
partment existed  entirely  nonpartisan  and  nonpolitical,  composed  of  men 
of  ability,  then  there  is  no  reason  why  that  committee  could  not  require 
briefs  to  be  filed  before  them  and  ask  the  help  of  this  department.  Then 
it  would  be  harder  to  deceive  by  misstatements.  Then  any  one  could 
investigate  for  himself  if  he  was  honest  and  wanted  to  do  his  duty. 

As  to  our  own  department  in  Wisconsin,  I  do  not  want  you  to  have 
the  impression  that  we  are  reformers,  that  we  are  trying  to  influence  our 
legislators  in  any  way,  that  we  are  upon  one  side  or  another  upon  any 
question,  or  that  we  are  for  or  against  somebody  or  something.  We  are 
merely  a  business  branch  of  the  government.  I  do  not  want  you,  cither, 
to  think  that  we  are  dictating  legislation.  W^e  are  not.  We  are  merely 
servants  of  the  good,  able,  and  honest  legislators  of  our  state.  We  are 
merely  clerks  to  gather  an  index  and  put  together  the  information  that 
these  busy  men  desire.  It  is  merely  a  business  proposition.  I  do  not 
want  to  deceive  you,  and  to  have  you  think  that  we  have  done  more 
than  we  have  in  Wisconsin.  We  have  as  vet  but  a  small  department.  But 
I  believe  that  this  work  has  had  a  decided  effect  upon  legislation  in 
Wisconsin.  I  can  say  truly  it  is  popular  with  all  members  of  the  legis- 
lature. We  have  answered  thirty  or  forty  questions  a  day  upon  vari- 
ous topics.  As  .soon  as  a  c|uesti()n  relating  to  the  quality  of  diphtheria 
antitoxin  or  some  other  diOicull  subject  comes  before  the  legislature, 


THE  LEGISLATURE  73 

hundreds  of  letters  go  out  from  our  department  to  the  great  schools  of 
medicine,  to  the  great  hospitals,  and  to  the  scientists  who  have  knowledge 
upon  that  subject.  The  results  of  their  investigations  are  placed  before 
our  committee  in  concise  form.  So  question  after  question  is  investigated 
in  as  scientific  a  manner  as  our  time  and  means  allow  us.  It  is  our  duty 
to  gather  every  bit  of  scientific  data  from  whatever  source.  The  legis- 
lator sometimes  does  not  know  where  he  gets  the  information.  The 
professor  of  economics,  the  professor  of  political  science,  the  public  man, 
the  chemist  or  scholar,  does  not  know  where  it  goes.  The  great  body  of 
public  men  throughout  the  countr)'  can  be  drawn  upon  for  information 
to  help  our  legislators.  Committees,  too,  realize  the  worth  of  this  research 
work,  and  a  large  number  of  the  bills  before  them  are  investigated  by 
this  department.  Committees  working  upon  abstract  and  technical  sub- 
jects have  at  their  hands  in  concise  form  letters  and  opinions  and  other 
data  from  all  over  the  countr}',  from  experts  upon  the  particular  subjects 
on  which  the  committee  is  working.  We  feel  that  we  have  done  very 
little,  but  that  at  least  we  have  done  something  where  nothing  was  done 
formerly. 

Sources  of  Material 

Most  of  the  material  essential  to  the  Legislative  Reference  Depart- 
ment can  be  readily  obtained,  with  comparatively  little  cost.  Probably 
half  is  documentary  in  its  nature,  and  a  request  forwarded  to  the  proper 
source  almost  invariably  meets  with  prompt  and  generous  response,  from 
both  L^nited  States  offices  and  various  state  departments.  An  appeal  to 
the  Secretary  of  State  or  to  the  heads  of  the  various  state  departments 
for  copies  of  the  reports,  bulletins,  or  publications  of  a  state  is  never 
refused,  if  it  is  known  that  the  value  of  such  documents  is  appreciated 
and  that  they  will  be  made  available  for  public  use.  This  class  of  material 
costs  nothing  except  postage  and  occasionally  express  charges,  and  is 
of  the  utmost  value  and  unobtainable  elsewhere. 

The  proceedings  of  the  various  local  and  national  societies,  together 
with  their  special  reports  and  bulletins,  are  very  desirable,  and  many  of 
these  may  be  obtained  by  applying  either  to  the  secretaries  or  to  the 
local  members,  who  will  be  glad  to  furnish  such  material.  Societies  which 
deal  with  economics,  political  science,  law,  commerce  and  industry,  mu- 
nicipal problems,  and  labor  organizations  have  been  formed  to  investigate 
these  subjects  and  to  forward  the  interests  of  all  concerned  therein. 
They  are  glad  to  have  their  ideas  and  policies  placed  where  they  will  be 
given  publicity  and  be  used  most  profitably. 

By  keeping  in  close  touch  with  the  views  and  interests  of  the  legis- 
lators we  learn  of  many  individuals  whose  interests  are  along  specific 
lines  and  who  devote  their  time  to  special  subjects.  To  these  men,  as 
individuals,  we  apply  for  helpful  suggestions,  not  only  as  to  material  but 
also  as  to  criticisms  upon  particular  laws,  and  from  them  we  receive 


74  AMERICAN  STATE  GOVERNMENT 

many  gifts  of  pamphlets  and  material  which  could  scarcely  be  obtained 
in  any  other  way. 

The  newspapers  furnish  a  source  of  inexpensive  and  invaluable  ma- 
terial. Clippings  from  the  newspapers  of  different  parts  of  the  country 
should  be  arranged  and  classified  the  same  as  pamphlets.  Perhaps  some 
local  newspaper  will  be  willing  to  contribute  its  exchanges.  In  this  way 
one  can  keep  the  department  in  touch  with  public  opinion,  not  only  in  its 
own  locality  but  throughout  the  entire  countr}'. 

There  are  some  periodical  publications  which  can  be  secured  as  gifts 
or  at  very  small  expense ;  these  may  be  clipped  and  the  material  put 
upon  the  shelves  according  to  subject.  A  useful  subscription  list  should 
be  judiciously  chosen,  and  care  must  be  taken  to  keep  this  list  within  a 
reasonable  amount. 

Finally,  if  information  upon  a  particular  phase  of  a  given  subject  is 
wanted,  in  order  to  meet  some  special  demand,  a  circular  letter  sent  to 
experts  or  officials  is  to  be  recommended.  This  brings  information 
absolutely  unavailable  in  books,  with  practically  no  cost,  and  the  returns 
may  be  mounted  and  put  into  pamphlet  form  immediately. 

There  are  some  books  which  one  must  buy,  but  a  most  creditable  and 
useful  collection  can  be  made  at  a  cost  so  small  that  it  puts  a  department 
of  this  type  in  a  unique  position  in  the  librar}'  world. 

The  important  consideration  in  the  gathering  of  material  is  not  the 
amount  of  money  involved,  but  the  patience  and  time  required  in  writing 
many  letters  to  the  proper  sources,  and  the  judgment  and  discretion 
required  in  retaining  that  which  is  truly  "  worth  while." 

METHODS   OF  LEGISLATION  ^ 

To  explain  the  importance  of  the  House  "organization"  it  is  necessary 
to  discuss  the  parliamentary  rules  and  tactics  used  in  steering  a  bill  through 
the  House.  The  road  is  long  and  hard  without  the  friendship  of  the  com- 
mittee to  which  the  bill  is  referred,  and  of  the  Speaker,  who  can  wield  the 
gavel  to  help  or  hinder  its  progress.  The  bill  must  go  to  committee,  be 
printed,  be  reported  out  to  pass,  and  be  read  on  three  different  days.  It 
may  be  amended  after  second  reading;  it  must  be  engrossed  before  third 
reading.  Then  it  is  in  the  order  of  passage,  and  requires  in  the  House 
seventy-seven  votes  to  pass.  With  a  friendly  House  and  Speaker  it  may, 
on  introduction,  by  unanimous  consent  (wholly  dependent  on  the  Speaker's 
hearing  objections  if  made),  be  read  a  first  time  without  reference  to  a 
committee,  read  a  second  time  on  the  following  day,  and  on  the  third  day 
passed.  This  is  the  short  road.  The  bill  to  provide  for  the  incidental 
expenses  of  the  assembly  invariably  follows  this  route.  A  committee 
may  itself  prepare  and  introduce  a  bill.  In  this  way  the  death-limit  bill 
was  introduced  in  the  Senate  and  passed  in  forty-eight  hours. 

1  From  a  bulletin  of  the  Legislative  Voters'  League  of  Illinois,  1903. 


THE  LEGISLATURE  75 

On  the  other  hand,  consider  the  petty  annoyances  to  which  a  decent 
member  outside  the  "  organization  "  may  be  subjected,  and  the  methods 
by  which  legitimate  legislation,  backed  by  him,  may  be  blocked.  The 
bill  goes  to  an  unfriendly  committee.  The  chairman  refuses  to  call  the 
committee  together,  or,  when  forced  to  call  it,  a  quorum  does  not  attend. 
In  case  a  quorum  attends,  the  point  maybe  raised  that  the  bill  is  not  printed, 
or  the  chairman  may  fail  to  have  the  original  bill  with  him.  Action  may 
be  postponed  on  various  pretexts,  or  the  bill  may  be  referred  to  a  subcom- 
mittee. The  committee  may  kill  the  bill  by  laying  it  on  the  table.  On  the 
other  hand,  the  committee  may  decide  that  the  bill  be  reported  to  the  House 
to  pass.  Then  a  common  practice  is  for  the  chairman  to  pocket  the  bill, 
delaying  to  report  it  to  the  House  till  too  late  to  pass  it.  When  finally 
reported  to  the  House,  it  goes  on  the  calendar  to  be  read  a  first  time  in  its 
order.  Then  begins  the  advancing  of  bills  by  unanimous  consent,  without 
waiting  to  reach  them  in  order.  Here  is  where  the  "  organization  "  has 
absolute  control.  Unanimous  consent  is  subject  to  the  speaker's  acute- 
ness  of  hearing.  His  hearing  is  sharpened  or  dulled  according  to  the  good 
standing  of  the  objector  or  of  the  member  pushing  the  bill.  If  one  not 
friendly  to  the  House  "  organization  "  wants  to  have  his  bill  considered 
over  an  objection,  he  must  move  to  suspend  the  rules.  The  Speaker  may 
refuse  to  recognize  him,  or  may  put  his  motion  and  declare  it  carried  or 
not  carried,  as  suits  his  and  the  "  organization's  "  desires.  So  the  pet  bills 
are  jumped  over  others  ahead  of  them  on  the  calendar,  while  the  ones  not 
having  the  backing  of  the  House  "  organization  "  are  retired  farther  and 
farther  down  until  their  ultimate  passage  becomes  hopeless.  If  the  bill 
of  the  independent  member  reaches  second  reading,  it  may  be  killed  by 
striking  out  the  enacting  clause  or  by  tacking  on  an  obnoxious  amendment 
that  makes  it  repulsive  to  its  former  friends.  A  referendum  requiring 
not  a  majority  of  those  voting  on  the  bill,  but  a  majority  of  all  the  votes 
cast  at  the  election  to  adopt  it,  is  a  new  and  favorite  method  of  shelving 
a  bill  by  amendment.  To  cany  out  the  will  of  the  "  organization, "  the 
Speaker  declares  amendments  carried,  or  the  contrary,  on  viva  voce  vote. 
Demands  for  roll  calls  are  ignored  by  him  in  violation  of  the  members' 
constitutional  rights.  This  is  called  gaveling  a  bill  through.  Formerly  the 
gavel  was  used  to  carry  through  political  measures  of  the  majority  party 
and  to  prevent  obstructive  and  dilatory  tactics  of  the  minority  party.  By 
a  gradual  growth  it  has  come  to  be  used  to  help  or  defeat  legislation  in 
which  the  "  organization  "  has  an  interest,  although  the  majority  may  have 
a  contrary  view.  What  the  Speaker  declares  the  clerk  must  record,  and 
what  the  clerk  records  no  court  will  set  aside. 

If  a  bill  comes  through  this  critical  stage  of  amendment  safe  and  sound, 
it  goes  into  the  engrossing  committee  and  becomes  the  victim  of  the  chair- 
man. He,  in  turn,  may  neglect  to  report  it  back  until  its  place  on  the 
calendar  is  so  far  behind  that  a  single  objecting  member  (subject  to  the 
Speaker's  hearing)  may  prevent  it  ever  reaching  a  vote. 


76  AMERICAN   STATE  GOVERNMENT 

The  "  organization's  "  control  of  a  bill  is  not  ended  on  roll  call  for  pas- 
sage. Here  the  members  cannot  escape  a  record.  They  must  come  out 
in  the  open,  voting  for  or  against  it  on  roll  call,  or  practically  vote  against 
it  by  remaining  silent.  It  must  have  seventy-seven  votes  to  pass.  Failure 
to  preserve  a  record  showing  a  constitutional  majority  voting  for  it 
would  invalidate  the  act.  But  the  "organization"  with  the  machinery  in 
its  hands  may  hold  back  the  announcement  of  the  vote  while  active  work 
on  the  floor  among  members  may  change  votes  or  persuade  those  not  vot- 
ing to  support  the  bill.  If  its  defeat  is  desired,  the  announcement  is  made 
promptly,  leaving  no  time  for  such  work. 

The  foregoing  will  explain  the  importance  of  capturing  the  House 
"  organization."  There  are  fifty-seven  committees  to  be  appointed,  and  to 
fill  them  the  Speaker  must  make  over  a  thousand  assignments.  He  and  his 
backers  use  these  as  inducements  to  members  to  join  their  forces.  In  ad- 
dition he  controls  the  House  patronage.  The  same  system  applies  to  the 
Senate.  The  legislative  pay  roll  is  created  on  the  first  day's  session,  and 
in  the  confusion  and,  to  the  new  members,  novelty  of  the  situation,  reso- 
lution after  resolution  is  put  through,  creating  a  needless  and  extravagant 
pay  roll.  At  the  same  time  a  bill  to  provide  $100,000  for  this  pay  roll  is 
started  on  its  way  to  the  Senate.  Of  this  sum  $75,000  used  during  the 
last  session  was  clear  waste,  to  pay  for  positions  not  provided  by  statute  and 
not  necessary  to  the  work  of  the  session.  Ninety-three  janitors  and  seventy 
policemen  formed  a  portion  of  the  two  hundred  and  sixty-one  sinecure 
jobs  paid  for  out  of  this  fund,  and  the  only  service  required  was  to  appear 
at  the  auditor's  window  and  draw  pay.  The  pay  roll,  by  judicious  distri- 
bution, was  used  to  further  the  ends  of  the  "  organization." 

After  creating  this  pay  roll  the  purely  political  play  of  setting  up  the 
pins  of  the  "  organization  "  commenced,  while  the  state  paid  the  enormous 
daily  expenses  of  the  session.  Eorty  days  were  consumed  before  a  single 
committee  was  appointed.  Their  make-up  had  to  be  carefully  considered, 
not  with  any  regard  to  public  interests,  but  with  a  view  to  rewarding 
friends  and  punishing  enemies.  With  a  clique  Speaker  and  a  clique 
organization  of  committees  it  was  thought  the  majority  could  be  throttled. 
Meantime  not  a  stroke  of  work  was  done  except  to  pile  up  bills  for  the 
consideration  of  committees  when  a])pointcd.  Daily  sessions  of  an  hour's 
length  were  held  on  three  days  of  the  week  during  this  time.  Then  a 
week  after  the  appointment  of  the  committees  the  first  House  bill  passed. 
And  still  every  effort  in  committee  and  on  the  floor  was  made  to  keep  im- 
portant legislation,  excepting  appropriation  bills,  in  the  background.  This 
was  done  with  a  view  to  i:)iling  up  the  business  for  the  last  two  weeks  of  the 
session,  when,  in  the  crush  and  confusion,  the  "organization  "  could  advance 
its  own  bills  and  kill  all  others.  Aside  from  formal  bills  to  ajipropriate 
money  and  to  fix  court  terms  in  some  counties,  no  important  legislation 
passed  the  I  louse  until  seventy-eight  days  of  the  .session  were  gone.  Then 
the  State  Civil  Service  Bill,  with  its  vitals  torn  out,  was  sent  to  the  Senate. 


THE  LEGISLATURE 


11 


Practically  the  House  did  not  get  down  to  business  until  the  time  to 
adjourn  had  been  fixed.  On  March  31,  nearly  three  months  after  its  first 
meeting,  it  began  to  hold  two  sessions  a  day  and  to  meet  five  days  in  the 
week.  This  program  seemed  merely  to  enliven  some  of  the  worst  com- 
mittees, and  they  began  sending  out  their  "  regulators."  A  "  regulator," 
"  holdup  bill,"  or  "sandbagger"  may  be  defined  as  a  bill  to  regulate,  tax. 
license,  or  prohibit  certain  industries.  The  manipulation  and  juggling  of 
these  bills  has  become  an  industry  in  the  legislature.  Of  the  eight  hundred 
and  seventy-three  bills  introduced  in  the  House,  over  one  hundred  were 
bills  of  this  nature.  They  came  from  about  fifteen  members,  Republicans 
and  Democrats,  and  mostly  from  Cook  County.  Many  of  these  bills  were 
greeted  with  a  smile  of  recognition  as  they  made  their  appearance  from 
day  to  day,  dug  from  the  records  of  former  sessions.  The  mechanical 
operation  of  a  typewriter  prepared  them  for  renewed  "usefulness."  Some 
of  the  legislative  clique  had  not  the  ingenuity  or  experience  necessary 
to  the  selection  of  a  "  good  proposition,"  and  it  is  well  known  that  such 
measures  were  handed  them  for  introduction  by  experts  in  that  line,  with 
a  promise  of  some  of  the  fruits.  The  handling  of  the  bills  in  committee 
and  on  the  floor  was  left  to  the  more  astute  and  experienced  members 
of  the  clique. 

Most  of  such  bills  were  sent  to  the  committees  on  municipal  corpo- 
rations, corporations,  railroads  and  license,  and  halted  there  in  the 
expectation  of  being  put  to  sleep.  Their  nurses  expected  a  handsome 
consideration  for  their  services.  They  had  brought  them  into  life  and 
were  their  tender  caretakers.  The  clique  had  been  given  absolute  control 
of  these  committees,  the  decent  members  being  a  small  minority.  This  was 
the  clique's  reward  for  the  support  its  Republican  members  gave  to  the 
"  organization  "  in  electing  the  Speaker.  Ever}^  one,  including  the  Speaker 
who  appointed  them,  and  the  committee  that  dictated  to  him  their  appoint- 
ment, knew  their  sandbagging  purposes.  Their  bills  met  none  of  the 
obstacles  so  easily  placed  in  the  way  of  broad  constructive  legislation  in 
these  committees.  The  proceedings  of  these  committees  were  conducted 
without  regard  to  parliamentary  rules  or  a  sense  of  fair  play.  Their  com- 
plexion and  methods  smacked  of  the  old-time  precinct  meeting  of  political 
heelers.  Decent  members,  coming  to  the  legislature  with  ambition  and  a 
desire  to  serve  public  interests,  though  Republicans,  were  relegated  to 
inactive  positions  as  members  of  the  minority  on  these  committees.  Here 
they  writhed  at  spectacles  of  demoralization  they  had  never  before  wit- 
nessed. Jokes  were  bandied  about  and  the  wink  exchanged  when  a 
notorious  "  sandbagger  "  was  under  discussion. 

The  control  of  four  such  important  committees  gave  the  disreputables 
a  powerful  leverage  for  bluff.  Here  their  holdup  measures  were  killed, 
postponed,  or  reported  out,  to  suit  their  convenience.  When  sent  to  the 
House  through  the  cowardice  or  friendliness  of  a  complaisant  Speaker, 
they  were  juggled  on  the  floor  to  positions  of  vantage  that  were  intended 


78  AMERICAN  STATE  GOVERNMENT 

to  scare  the  financial  interests  affected.  Yet  in  the  few  instances,  when 
such  bills  came  to  a  final  vote,  they  were  promptly  killed  by  the  honest 
majority. 

Some  members  and  some  of  the  public  are  indifferent  to  this  venal 
practice,  because  it  "  merely  pulls  the  leg  of  some  corporation."  They 
overlook  the  fact  that  these  bills  crowd  the  calendar,  force  trading  with 
venal  men  for  votes,  involve  a  principle,  and  result  in  the  selling  of  souls. 
The  few  members  who  come  to  the  legislature  with  the  deliberate  pur- 
pose of  indulging  in  this  illegitimate  business  are  like  rotten  apples  in  a 
barrel.  They  taint  the  whole.  It  is  true  that  few  begin  their  career  with 
this  deliberate  purpose.  Yet  the  fact  remains  that  in  every  session  these 
bills  are  introduced  to  be  used  merely  as  clubs  to  knock  down  the  per- 
simmons in  order  that  the  hungry  few  may  gorge  themselves  on  the 
rotten  fruit.  It  is  further  true  that  men  of  substance,  who  can  justly 
claim  to  be  good  fathers,  husbands,  or  neighbors,  lend  themselves  to  this 
slaughtering  of  the  public  good  for  private  gain,  either  through  cowardly 
weakness  or  because  the  almighty  dollar  is  a  stronger  argument  than  a 
clear  conscience.  To  one  who  has  obtained  a  peep  behind  the  scenes  the 
pathos  of  the  whole  matter  lies  in  the  fact  that  in  forty-nine  cases  out  of 
fifty  the  money  that  has  been  put  up  to  avoid  vicious  legislation  is  worse 
than  wasted.  If  the  vicious  manipulator  can  be  made  to  understand  that 
every  time  he  puts  up  money  to  obtain  or  prevent  legislation  where  it  can- 
not stand  on  its  merits,  he  is  simply  bartering  in  human  souls,  his  own 
included,  the  use  of  unlawful  money  can  be  kept  out  of  our  state  legis- 
lature. If  this  is  done  for  one  session,  more  than  90  per  cent  of  civic 
evil  will  disappear.  This  reform  cannot  be  brought  about  by  more  strin- 
gent laws.  It  must  be  brought  about  by  stirring  public  sentiment  to  the 
point  where  even  the  just  suspicion  of  one's  connection  with  boodling, 
either  as  one  who  furnishes  the  funds  or  as  the  director  of  an  institution 
that  will  shut  its  eyes  and  wink  at  corruption,  will  cause  one  to  be  shunned 
by  all  honest  men. 

Even  a  casual  observance  of  the  workings  of  the  legislature  will 
show  the  absurdity  of  a  party  organization  of  the  House.  Party  lines 
have  little  to  do  with  the  actual  ivork  of  the  legislature.  With  its  organ- 
ization they  have  no  concern.  There  were  only  two  strict  party  votes 
during  the  session:  the  first  to  elect  a  United  States  senator;  the  second 
to  form  a  Republican  supreme  court  district.  Yet  the  pooh-bah  of  ])arty- 
ism  was  used  to  divide  honest  men,  and  the  party  caucus  adhered  to  with 
perfunctory  formality.  To  reform  the  legislature,  partisanship  and  fac- 
tionalism must  be  laid  aside  to  the  end  that  a  Speaker  be  elected  who  will 
respect  his  oath  of  office,  and  who  will  appoint  committees  promptly  and 
on  lines  of  honesty  and  fitness.  An  imjxjrtant  factor  in  accomplishing  this 
reform  will  consist  in  abolishing  ihe  vicious  ])ay  roll,  a  growing  evil  and  a 
factor  in  the  organization  of  both  I  louse  and  Senate.  With  such  reforms 
the  work  of  the  legislature  will  be  sifted  to  the  consideration  of  legitimate 


THE  LEGISLATURE 


79 


legislation  ;  deals,  bargains,  and  trading  of  votes  will,  to  a  large  extent,  be 
eliminated,  the  sessions  shortened  by  business  methods  being  pursued, 
and  the  legislature  will  become,  what  it  is  now  only  in  theory,  a  truly 
deliberative  body.  The  election  of  men  on  their  merits,  regardless  of 
party,  will  accomplish  this  reform.  No  mere  laws  or  system  of  rules  will 
do  it.    The  question  is  up  to  the  people  of  Cook  County. 

THE   LOBBY  1 
By  Governor  William  E.  Russell 

One  thing  above  all  is  necessary  to  make  law  the  true  expression  of 
the  people's  will.  Broadening  and  protecting  the  suffrage,  reforming  and 
purifying  elections,  will  fail  of  this  purpose  unless  the  lawmaking  power 
is  protected  from  insidious  and  corrupting  influences,  which  tend  to  con- 
trol legislation  against  the  people's  interest  and  to  impair  public  confi- 
dence in  its  impartial  enactment. 

There  exists  in  this  state,  as  in  other  states,  an  irresponsible  body  known 
as  the  lobby,  representing  or  preying  upon  special  interests,  which  pro- 
fesses and  undertakes  for  hire  to  influence  or  control  legislation.  Its 
work  is  wholly  distinct  and  different  from  the  advocacy  of  one's  cause  in 
person,  or  by  counsel  or  agent,  which  is  the  constitutional  right  of  every 
one.  It  seeks  often  to  control  nominations  and  elections,  and  to  subject 
the  individual  legislator,  directly  or  indirectly,  to  secret  and  improper 
influences.  It  throws  suspicion  upon  the  honest  and  temptation  in  the 
way  of  the  dishonest.  Professing  power  greater  than  it  has,  it  frequently 
extorts  money  as  the  price  of  its  silence  or  unnecessary  assistance.  It 
has  initiated  legislation,  attacking  the  interests  of  its  clients  in  order  to  be 
hired  to  defend  those  interests.  It  has  caused  the  expenditures  of  large 
sums  of  money  to  obtain  or  defeat  legislation.  It  cares  little  for  the 
merits  of  a  measure  or  the  means  employed  to  make  it  successful.  In 
my  judgment  improper  measures  have,  by  its  influence,  been  made  law, 
against  the  public  interest,  and  just  measures  have  been  defeated.  These 
criticisms  have  not  been  based  upon  rumor  or  conjecture,  but  upon  facts 
reported  after  most  thorough  investigation  by  your  predecessors,  who 
denounced  the  evil  in  unsparing  terms  and  diligently  sought  a  remedy. 

In  1887  they  spoke  of  the  methods  thus  employed  as  "  a  struggle  for 
success  without  regard  to  means  ";  "  causing  a  growing  demoralization  "; 
and  they  added,  "  the  venality  and  corruption  which  these  practices 
encourage,  tending  to  defeat  that  right  and  justice  which  the  state  is 
bound  freely  and  without  price  to  bestow,  are  a  reproach  to  a  free 
people."  In  the  same  year  the  governor,  vetoing  a  measure  because  of 
the  lobby  influence,  described  the  lobby  as  "  a  pernicious  system,"  and 
its  methods  as  "  a  monstrously  bad  and  corrupting  practice."    In  1890  a 

1  From  a  message  to  the  Massachusetts  legislature,  January,  1891. 


8o  AMERICAN  STATE  GOVERNMENT 

committee  of  investigation  of  the  House  reported:  "  It  is  a  fact  beyond 
denial  that  a  body  of  professional  lobbyists  has  for  years  formed  part  of 
the  machinery  of  legislation,  .  .  .  and  has  been  growing  in  numbers 
and  influence,"  and  again  they  denounced  its  methods.  The  evils  of  the 
lobby  have  become  so  flagrant  and  disgraceful  that  for  the  purity  of 
legislation,  the  protection  of  the  legislature,  and  the  fair  name  of  our 
commonwealth,  they  demand  your  serious  consideration  and  some  strin- 
gent and  radical  remedy.  This  is  a  matter  which  especially  concerns  the 
legislature,  and  therefore  one  which  the  executive  approaches  with  some 
embarrassment.  Yet  I  feel  I  should  be  derelict  in  my  duty  if  I  failed  to 
do  all  in  my  power  to  aid  you  in  its  solution. 

It  is  far  easier  to  state  the  evil  than  to  suggest  the  remedy.  Clearly 
it  is  impossible  and  improper  to  prevent  a  constituent  or  any  other  per- 
son from  having  the  freest  access  to  a  legislator.  This  constitutional 
right  guaranteed  to  the  people  gives  opportunity  to  the  lobby  to  do  its 
work.  Prevention  by  nonintercourse  is  therefore  impossible.  Prevention 
by  publicity  is  possible,  and  I  would  suggest  for  your  consideration 
whether  a  remedy  may  not  be  found  in  this  direction  by  making  it  easier 
than  it  now  is  publicly  to  investigate  the  methods  used  and  money  spent 
on  pending  legislation ;  and  also,  by  giving  power  to  some  proper  officer, 
before  a  measure  finally  becomes  law,  to  demand  under  oath  a  full  and 
detailed  statement  as  to  these  matters.  The  fear  of  publicity,  and  through 
it  of  defeat,  may  stop  improper  practices  by  making  them  worse  than 
useless.  Your  immediate  predecessors,  with  an  earnest  desire  to  cure  the 
evil,  and  believing  in  the  remedy  of  publicity,  passed  an  act  requiring  all 
counsel  and  agents  employed  by  any  special  interest  on  matters  pending 
before  the  legislature  to  be  registered,  and  a  statement  under  oath  of  all 
expenses  incurred  to  be  made  within  thirty  days  after  the  adjournment  of 
the  legislature.  I  believe  that  good  will  come  from  this  act  if  fairly  and 
thoroughly  enforced,  but  that  it  falls  short  of  being  a  sufficient  remedy. 
It  makes  public  the  names  of  all  persons  employed,  but  not  the  acts  of 
the  lobbyist.  It  makes  public  the  expenses  incurred,  but  too  late  to  affect 
the  legislation  for  which  they  were  incurred. 

I  ask  you  also  to  consider  whether  something  cannot  be  done  to  relieve 
the  legislature  of  much  work  that  seems  to  be  honest  and  unnecessary, 
to  prolong  its  sessions,  and  to  give  life  and  strength  to  the  lobby.  Recent 
amendments  to  your  rules  have  been  made,  I  am  informed,  with  this 
purpose.  You  may  deem  it  wise  to  make  further  provision  for  an  earlier 
introduction  of  business  and  for  its  more  systematic  conduct.  Any  steps 
which  would  tend  to  reduce  suggested  legislation  to  a  specific  form,  and 
to  give  the  fullest  possible  notice  to  the  puijlic  of  the  exact  status  of  any 
matter  pending,  would,  I  am  confident,  restrict  the  employment  of  the 
lobby. 


THE  LEGISLATURE  8 1 

LOBBYING  1 

State  of  Wisconsin,  Executive  Office 
Madison,  May  25,  1905 
To  the  Honorable,  the  Legislature  : 

Upon  the  assembling  of  the  Senate  and  assembly  in  joint  session  at 
the  opening  of  this  legislature  on  the  twelfth  day  of  January,  1905,  in 
the  message  then  submitted,  among  other  things  presented  for  your 
consideration,  I  said : 

I  am  not  unmindful  of  the  fact  that  members  of  the  legislature  are  the 
agents  of  their  constituents ;  that  they  must  ever  be  ready  to  be  made 
acquainted  with  their  wishes  and  with  the  interests  of  the  public.  But  that  a 
system  of  lobbying,  more  reprehensible  in  its  character  than  has  yet  been 
suggested  to  the  public,  has  been  maintained  about  this  legislature  for  many 
years  is  well  known  to  every  man  in  public  life.  That  it  is  desirable  to  put  an 
end  to  this  evil,  all  will  agree.  That  it  is  possible,  all  should  be  anxious  to 
demonstrate. 

I  desire  to  be  distinctly  understood  as  favoring  the  fullest  and  freest  dis- 
cussion before  committees,  and,  under  proper  regulations,  before  either  or 
both  branches  of  the  legislature,  by  individuals  or  the  representatives  of  inter- 
ests affected,  or  which  claim  to  be  affected  in  any  manner  by  proposed  legis- 
lation, but  /  urge  upon  your  consideration  the  enactment  of  a  law  that  shall 
make  it  an  offense,  punishable  by  the  heaviest  jnoney  penalty  afid  by  imprison- 
ment as  well,  for  any  lobby  agent  or  lobby  representatii'e,  employed  and 
paid  for  his  services  by  others,  to  attetnpt  personally  and  directly  to  influence 
any  mefnber  of  the  legislature  to  vote  for  or  against  any  measure  affecting 
the  interests  represented  by  such  lobbyist. 

No  one  acquainted  v^^ith  the  facts  will  venture  to  deny  that  the  lobby 
has  been  very  potent  in  legislation  for  many  years  in  Wisconsin. 

Session  after  session  the  schoolbook  lobby  has  suppressed  or  defeated 
legislation  inimical  to  the  interests  of  the  schoolbook  monopoly. 

Our  laws  upon  trusts  are  weak  and  impotent.  They  serve  merely  to 
foil  the  enactment  of  something  better.  For  three  successive  sessions  I 
have  urgently  recommended  revision  and  have  submitted  plain  and 
specific  recommendations  for  effective  legislation.  A  hostile  lobby  has 
found  a  way  to  block  all  legislation  upon  the  subject. 

A  telephone  monopoly  has  for  years,  through  the  services  of  a  paid 
lobby,  prevented  the  enactment  of  a  statute  which  would  have  given 
the  people  of  this  commonwealth  a  competitive  service  and  assured 
them  a  reasonable  rate. 

Without  going  back  over  that  period  of  time  covered  by  the  impudent 
boast  of  a  railway  lobbyist,  proclaimed  in  this  capitol,  that  "  No  bill  has 
been  enacted  into  law  during  the  sixteen  years  last  past  in  the  interests 
of  the  people  when  objected  to  by  the  railroads,"  — without  going  back 
further  than  the  service  of  many  members  of  this  legislature  extends, 

1  Message  of  Governor  La  Follette  to  the  Wisconsin  legislature,  May,  1905. 


82  AMERICAN   STATE  GOVERNMENT 

it  admits  of  no  denial  that  the  railway  lobby  defeated  the  bill  to  increase 
railway  taxes  in  1899,  that  it  defeated  the  bill  to  increase  railway  taxes 
again  in  1901,  that  it  defeated  the  bill  to  create  a  railway  rate  commis- 
sion in  both  of  those  sessions  and  again  in  1903.  The  railway  lobby 
maintained  at  this  capitol  since  1899  has  cost  the  people  of  \\'isconsin 
millions  upon  millions  of  dollars. 

At  this  session,  and  at  every  session  for  years,  paid  lobbyists  have 
been  employed  about  this  legislature,  by  the  railroads,  who  are  incom- 
petent to  argue  any  proposition  before  a  legislative  committee.  They 
are  a  grade  of  men  with  whom  the  railway  companies  would  not  trust 
the  trial  of  a  petty  damage  suit  in  a  justice  court.  Thev  dog  the  foot- 
steps of  legislators  in  and  out  of  the  capitol,  they  follow  them  to  their 
rooms  and  hotels,  they  are  free  with  entertainment.  It  is  their  business 
more  especially  to  see  legislators  personally.  Their  special  talent  seems 
to  fit  them  more  particularly  for  private  argument.  Their  presence  is 
an  annoyance  and  a  nuisance.  Their  employment  here  should  constitute 
a  statutory  offense. 

The  experience  in  Wisconsin  is  duplicated  in  every  state  in  the  Union 
where  effort  is  made  to  emancipate  legislation  from  corporate  control. 
Governor  Larrabee,  writing  of  the  long  struggle  which  preceded  the 
establishment  of  the  Iowa  Rate  Commission,  said  of  the  railway  lobby 
the  following :  "  If  the  items  annually  expended  upon  railroad  lobbies 
were  reported,  these  lobbies  would  soon  be  frowned,  or  even  hissed,  out 
of  legislative  halls." 

This  legislature  can  at  this  session,  —  and  who  will  assume  the  respon- 
sibility of  saying  it  is  not  high  time  that  it  should  at  this  session  put  all 
paid  lobbyists  under  regulations  that  will  make  such  scenes  as  have  been 
notorious  in  the  capital  city  of  this  state  for  years,  impossible  for  all  time 
to  come.  I  would  neither  recommend  nor  approve  of  a  law  interferino- 
with  free  and  full  public  discussion  of  all  measures  of  proposed  legislation. 
Every  opportunity  and  every  courtesy  should  be  extended  to  those  who 
favor  and  to  those  who  oppose  any  pending  bill  for  open  public  discus- 
sion, before  committees  and  in  cither  chamber  before  legislators  and  the 
public.  Every  legitimate  argument  which  any  lobbyist  has  to  offer,  and 
which  any  legislator  ought  to  hear,  can  be  presented  before  committees, 
before  the  legislators  as  a  body,  through  the  press,  from  the  public  plat- 
form, and  through  printed  briefs  and  arguments  placed  in  the  hands  of 
all  members  and  accessible  to  the  public. 

Corporate  interests  can  maintain  a  strong  lobby  composed  of  able 
men  at  the  capitol  throughout  the  entire  session.  Those  who  would  be 
heard  in  opposition  cannot.  How  unjust  it  is  to  hold  a  public  hearing, 
invite  both  sides  to  present  arguments,  and  then  when  the  hearing  is 
over  to  allow  the  permanent  lobby  to  continue  the  discussion  with  indi- 
vidual legislators  personally  through  weeks  of  the  session  thereafter,  ' 
without  those  opposed   being  present  to   hear  and   refute  arguments. 


THE  LEGISLATURE  83 

Leaving  aside  all  question  of  any  improper  suggestion  or  inducement 
being  presented  in  a  personal  or  private  interview  with  a  legislator,  con- 
sider how  unjust  it  is  to  the  opposition  and  to  the  public  to  accord  to  one 
side  such  an  advantage  when  it  is  denied,  or  impossible,  to  the  other. 

The  legislation  which  I  most  earnestly  recommend  is  right  in  reason 
and  is  sanctioned  by  the  highest  authority.  The  most  eminent  writer  in 
this  country  upon  constitutional  law  has  said : 

The  law  also  seeks  to  cast  its  protection  around  legislative  sessions  and  to 
shield  them  against  corrupt  and  improper  influences,  by  making  void  all  con- 
tracts which  have  for  their  object  to  influence  legislation  in  any  other  manner 
than  by  such  open  and  public  presentation  of  facts,  arguments,  and  appeals  to 
reason  as  are  recognized  as  proper  and  legitimate  with  all  public  bodies. 
While  counsel  may  be  properly  employed  to  present  the  reasons  in  favor  of 
any  public  measure  to  the  body  authorized  to  pass  upon  it,  or  to  any  of  its 
committees  empowered  to  collect  facts  and  hear  arguments,  and  parties  inter- 
ested may  lawfully  contract  to  pay  for  this  service,  yet  to  secretly  approach 
the  members  of  such  a  body,  with  a  view  to  influence  their  action  at  a  time 
and  in  a  manner  that  do  not  allow  the  presentation  of  opposite  views,  is 
improper  and  unfair  to  the  opposing  interest ;  and  a  contract  to  pay  for  this 
irregular  and  improper  service  would  not  be  enforced  by  the  law. 

The  chief  justice  of  an  appellate  court,  ranking  second  to  none  in  the 
Union,  says  in  a  leading  opinion  on  the  subject,  the  following : 

By  the  regular  course  of  legislation  organs  are  provided  through  which  any 
parties  may  fairly  and  openly  approach  the  legislature,  and  be  heard  with  proofs 
and  arguments  respecting  any  legislative  acts  which  they  may  be  interested  in, 
whether  public  or  private.  These  organs  are  the  various  committees  appointed 
to  consider  and  report  upon  the  matters  to  be  acted  upon  by  the  whole  body. 

When  private  interests  are  to  be  affected  notice  is  given  of  the  hearings 
before  these  committees,  and  thus  opportunity  is  given  to  adverse  parties  to 
meet  face  to  face  and  obtain  a  fair  and  open  hearing.  And  though  these 
committees  properly  dispense  with  many  of  the  rules  which  regulate  hearings 
before  judicial  tribunals,  yet  common  fairness  requires  that  neither  party  shall 
be  permitted  to  have  secret  consultations  and  exercise  secret  influences  that 
are  kept  from  the  knowledge  of  the  other  party.  The  business  of  "  lobby 
members  "  is  not  to  go  fairly  and  openly  before  the  committees  and  present 
statements,  proofs,  and  arguments  that  the  other  side  has  an  opportunity  to 
meet,  and  refute  if  they  are  wrong,  but  to  go  secretly  to  the  members  and  ply 
them  with  statements  and  arguments  that  the  other  side  cannot  openly  meet, 
however  erroneous  they  may  be,  and  to  bring  their  illegitimate  influences  to 
bear  upon  them.  If  the  "lobby  member"  is  selected  because  of  his  political 
or  personal  influence,  it  aggravates  the  wrong.  If  his  business  is  to  unite 
various  interests  by  means  of  projects  that  are  called  "  logrolling,"  it  is  still 
worse.  The  practice  of  inducing  members  of  the  legislature  to  act  under  the 
influence  of  what  they  have  eaten  and  drunk  at  houses  of  entertainment 
tends  to  render  those  of  them  who  yield  to  such  influences  wholly  unfit  to 
act  in  such  cases.  The  tendency  and  object  of  these  influences  are  to  obtain 
by  corruption  what  it  is  supposed  cannot  be  obtained  fairly. 


84  AMERICAN  STATE  GOVERNMENT 

We  have  a  statute  requiring  lobbyists  to  register  with  the  Secretary  of 
State  before  engaging  in  the  business  of  lobbying.  If  lobbying  privately 
and  secretly  with  the  individual  is  made  an  offense,  it  will  go  far  to  pre- 
vent any  lobbyist  from  seeing  or  attempting  to  see  a  legislator  alone.  If, 
after  a  hearing  is  ended  before  any  committee,  further  information  is 
desired  by  the  committee,  or  any  member  or  members  of  the  committee, 
or  of  the  legislature,  lobby  counsel  upon  both  sides  will  always  cheerfully 
respond  to  a  call  for  a  further  public  hearing  in  committee  rooms  or  in 
either  chamber  of  the  legislature.  No  fear  need  be  entertained  that  the 
members  will  be  denied  all  of  the  information  which  it  is  possible  for 
those  interested  in  legislation  upon  either  side  to  furnish. 

To  exclude  lobbyists  from  the  legislative  halls  may  promote  the  com- 
fort and  convenience  of  members  of  the  Senate  and  assembly.  It  would, 
in  no  measure,  tend  to  eradicate  the  injustice  and  evil  resulting  from 
private  and  secret  lobbying.  Indeed,  it  might  tend  to  increase  instead. 
No.  This  legislature  owes  it  to  itself  and  to  the  people  of  th^  state  to 
destroy  the  secret  lobby,  root  and  branch. 

Under  the  vigilant  eyes  of  an  awakened  public  the  operations  of  the 
lobby  have  not  been  so  openly  offensive  to  decent  morals  at  this  session 
as  at  previous  sessions. 

But  the  personal  appeals  of  paid  lobbyists  have  been  persistently 
made  to  legislators  throughout  this  session  after  hearings  have  been 
closed,  after  those  representing  the  other  side  have  retired  from  the 
capitol  and  from  the  city,  believing,  as  they  had  the  right  to  believe, 
that  the  discussion  had  closed. 

Personal,  private  lobbying  is  wrong  in  principle,  and  is  absolutely  cer- 
tain to  be  vicious  in  practice.  No  legislation  which  has  been  enacted 
will  be  secure,  and  that  which  the  public  interests  will  require  in  the 
future  will  never  be  reasonably  certain  of  attainment  until  the  secret 
lobby  with  its  misrepresentation  and  its  wrongdoing  is  prohibited  by  law. 

I  commend  to  your  considerate  judgment  the  enactment  of  a  statute 
making  it  a  penal  offense  for  a  paid  lobbyist  to  approach  a  legislator 
privately  or  personally  upon  any  matter  which  is  the  subject  of  legislation. 

Respectfully  submitted, 

Robert  M.  La  Follette,  Governor 


POPULAR  GOVERNMENT  IN  OREGON ^ 

By  Senator  Bourne 
Mr.  President : 

The  justice  of  all  laws  rests  primarily  on  the  integrity,  ability,  and  dis- 
interestedness of  the  individuals  enacting  them,  those  construing  them, 
and  those  administering  them.    On  this  assumption  I  believe  the  remarks 

1  From  the  Congressional  Record,  May  5,  1910. 


THE  LEGISLATURE  85 

I  intend  to  make  have  a  bearing  on  all  legislation,  and  hence  do  not 
hesitate  to  present  them  now  while  we  have  the  interstate  commerce  bill 
under  consideration. 

I  think  all  will  concede  that  the  times  seem  awry.  Unrest  exists 
throughout  the  civilized  world.  People  are  speculating  as  to  the  causes. 
Daily  uncertainty  grows  stronger  as  to  future  events. 

In  my  opinion  the  basic  cause  is  that  people  have  lost  confidence  in 
many  of  their  public  servants  and  bitterly  resent  attempted  dictatorship 
by  "  would-be  "  political  bosses  and  representatives  of  special  interests, 
who  desire  to  direct  public  servants  and  legislation  for  their  own  selfish 
interests  rather  than  assist  in  the  enactment  of  laws  guaranteeing  justice 
to  all  and  special  privileges  to  none. 

Successful  and  permanent  government  must  rest  primarily  on  recog- 
nition of  the  rights  of  men  and  the  absolute  sovereignty  of  the  people. 
Upon  these  principles  is  built  the  superstructure  of  our  republic.  Their 
maintenance  and  perpetuation  measure  the  life  of  the  republic.  These 
policies,  therefore,  stand  for  the  rights  and  liberties  of  the  people,  and 
for  the  power  and  majesty  of  the  government  as  against  the  enemies 
of  both. 

The  people  have  been  shocked  by  the  number  of  business  and  political 
exposures  which  have  been  brought  out  in  the  last  ten  years. 

At  the  time  of  Mr.  Roosevelt's  inauguration  the  tendency  was  to 
measure  national  prosperity  by  property  rather  than  by  personal  liberty. 
The  commercial  force  of  society  was  rapidly  throttling  the  police  power 
of  the  government.  Political  machines  and  bosses  dictated  the  legislative 
and  administrative  destinies  of  many  communities  and  states.  Mr. 
Roosevelt,  with  his  experience  in  practical  politics,  familiarity  with  gov- 
ernmental operations,  inherent  honesty,  dynamic  energy,  and  limitless 
courage,  demonstrated  that  he  measured  up  to  the  needs  of  the  time, 
and  assumed  leadership  for  reinstatement  of  the  police  power  of  the 
government  in  supremacy  over  the  commercial  force  of  society.  To  him 
belongs  credit  for  reestablishment  of  these  two  great  forces  in  their 
proper  relative  positions.  He  awakened  the  public  conscience,  and  the 
result  is  a  struggle  throughout  the  nation  between  the  advocates  of  what 
I  would  term  "  popular  government "  and  the  advocates  of  delegated 
government. 

Direct  Selection  of  Public  Servants 

In  many  instances  the  people  have  lost  confidence  in  their  public  serv- 
ants, the  same  as  many  stockholders  have  lost  confidence  in  corpora- 
tion management.  The  remedy  in  government  is  the  direct  selection  by 
the  people  of  their  public  servants,  with  the  resultant  accountability  of 
the  public  servant  to  the  people,  and  not  to  a  political  machine  or  boss. 
I  purposely  use  the  word  "  selection  "  rather  than  "  nomination,"  for  to 
my  mind  it  more  clearly  expresses  the  idea  of  the  responsibility  of  good 


86  AMERICAN  STATE  GOVERNMENT 

citizenship.  Selection  implies  the  careful  investigation  of  all  and  the 
resultant  choice  of  one.  The  remedy  in  corporation  management  is  rigid 
responsibility  to  government ;  equal  obedience  to  laws  and  equal  account- 
ability to  stockholders,  giving  the  government  and  the  stockholders  the 
fullest  publicity  of  its  operations,  including  absolute  honesty  and  simplic- 
ity of  its  accounts,  thus  protecting  the  rights  of  the  people  and  insuring 
to  all  the  stockholders  proportional  enjoyment  in  the  fruits  of  successful 
management. 

Mr.  President,  I  will  endeavor  to  deal  in  my  remarks  with  what  I 
believe  to  be  the  great  issue,  not  only  in  this  country  but  throughout  the 
civilized  world,  namely  popular  against  delegated  government. 

Much  has  been  said  in  favor  of  representative  government.  I  believe 
in  a  truly  representative  government,  but  where  the  selection  of  public 
sen'ants  is  left  to  a  political  machine  or  boss,  as  is  frequently  the  case 
under  our  convention  system,  the  tendency  is  toward  misrepresentative, 
and  not  a  truly  representative,  form  of  government,  notwithstanding  the 
election  is  supposedly  by  the  people. 

People  capable  of  Self-government 

There  are  doubtless  some  people  who  honestly  believe  that  the  people 
as  a  whole  have  not  reached  the  stage  of  development  qualifying  them 
individually  to  participate  in  government.  Others  whom  I  credit  with  the 
intelligence  which  I  have  seen  manifested  by  them  in  other  directions 
assert  the  inability  of  the  people  to  govern  themselves  as  an  excuse 
rather  than  a  conviction  ;  but  I,  Mr.  President,  from  thirty  years'  expe- 
rience in  practical  politics,  am  absolutely  convinced  not  only  that  the 
people  are  fully  capable  of  governing  themselves,  but  that  tliey  are 
decidedly  the  best  judges  as  to  those  individuals  to  whom  they  shall 
delegate  the  truly  representative  power. 

Individual  selfishness,  cupidity,  and  ambition  are  minimized  in  the 
party  or  general  electorate  selections  of  public  servants ;  good  general 
service  is  demanded  by  the  electorate,  special  service  by  the  individual. 

Hence  my  advocacy  of  popular  government.  By  popular  government 
I  mean  direct  legislation  as  far  as  practicable,  popular  selection  of  candi- 
dates, and  such  regulation  of  political  campaigns  as  will  secure  fair  and 
honest  elections.  Popular  selection  under  the  present  stage  of  evolution 
of  our  government  can  be  obtained  only  by  direct  primary  laws  and  com- 
plete elimination  of  convention  and  caucus  nomination  of  public  officers. 

Time  was  when  a  few  .self-conslituied  leaders  in  Oregon  politics  arro- 
gated to  themselves  the  prerogatives  of  government,  and  made  their 
assumption  effective  through  illicit  combinations  and  the  use  of  money  in 
any  and  every  (|uarter  where  necessary  to  their  purposes  of  control,— 
that  is,  they  commercialized  conventions,  legislatures,  and  the  adminis- 
trative branches  of  the  city,  county,  and  state  government.    It  was  not  a 


THE  LEGISLATURE  87 

condition  peculiar  to  Oregon.  It  obtained,  and  I  believe  still  obtains,  in  a 
more  or  less  flagrant  degree,  in  every  state  in  the  Union ;  and  it  had  its 
boldest,  most  unscrupulous  executive  genius  in  Boss  Tweed,  who,  recog- 
nizing the  opportunity  of  the  crook  in  government  by  party  through  con- 
vention nominations,  declared  he  did  not  care  who  elected  the  candidates 
so  long  as  he  had  the  power  to  nominate  the  ticket. 

Revolting  against  these  conditions,  the  state  which  I  have  the  honor, 
in  part,  to  represent,  has  evolved  the  best  known  system  of  popular  gov- 
ernment, and,  because  of  this  conviction,  I  take  this  opportunity  of  pre- 
senting not  only  to  the  Senate,  but  to  the  country,  a  brief  analysis  of  the 
Oregon  laws  bearing  upon  this  question,  with  my  own  deductions  as  to 
the  improvement  they  show  and  the  merits  they  possess. 

Australian-Ballot  Law 

Oregon  in  189 1  adopted  the  Australian  ballot,  which  insures  secrecy, 
prevents  intimidation,  and  reduces  the  opportunity  for  bribery.  This,  of 
course,  is  a  prerequisite  to  any  form  of  popular  government. 

Registration  Law 

Supplementing  the  Australian  ballot  law,  Oregon  enacted  in  1899  a 
registration  law  applying  to  general  elections,  and  enlarged  its  scope  in 
1904  in  the  law  creating  a  direct  primary.  This  law  requires  registration 
prior  to  voting  in  either  the  general  or  the  primary  election,  and  provides 
that  before  voting  in  a  party  primary  the  voter  must,  under  oath,  register 
his  party  affiliation.  Registration  begins  five  months  prior  to  the  general 
election.  Registration  books  are  closed  ten  days  prior  to  the  primary 
election  and  opened  again  four  days  after  the  primary,  and  then  kept  open 
until  about  twenty  days  before  the  general  election.  A  voter  may  regis- 
ter either  by  appearing  at  the  office  of  the  county  clerk  or  by  signing 
registration  blanks  before  a  notary  public  or  justice  of  the  peace. 

Upon  the  registration  books  are  entered  the  full  name  of  the  voter, 
his  registration  number,  date  of  registration,  his  occupation,  age,  nativity, 
date  and  place  of  naturalization,  if  any,  and  his  place  of  residence.  In 
order  to  guard  against  fraud  it  is  required  that  the  voter  shall  give  his 
street  and  number,  and,  if  he  is  not  the  head  of  the  house  he  occupies,  he 
must  show  that  fact  and  give  the  number  of  the  room  he  occupies  and 
upon  what  floor  of  the  building  it  is  located.  He  must  also  sign  the 
register,  if  he  can  write.  If  he  is  unable  to  write  his  name,  the  reason 
must  be  given.  If  his  inability  is  due  to  a  physical  defect,  the  nature  of 
the  infirmity  must  be  noted.  If  it  is  due  to  illiteracy,  a  physical  descrip- 
tion of  the  man  must  be  noted  in  the  register. 

All  these  facts  are  entered  in  precinct  registers,  which  are  placed  in  the 
hands  of  election  judges  and  clerks  on  election  day,  so  that  illegal  voting 
may  be  prevented. 


88  AMERICAN   STATE  GOVERNMENT 

Any  registered  voter  may  be  challenged  and  every  nonregistered  voter 
is  considered  challenged.  An  unregistered  person  qualified  as  an  elector 
may  be  permitted  to  vote  upon  signing  an  affidavit  setting  forth  all  the 
facts  required  in  registration,  and  also  securing  the  affidavits  of  six  own- 
ers of  real  property  to  the  effect  that  they  personally  know  him  and  his 
residence,  and  believe  all  his  statements  to  be  true. 

Thus  the  greatest  boon  of  American  citizenship,  namely  the  right  to 
participate  in  government,  is  protected,  and  dead  men,  repeaters,  and 
nonresidents  can  no  longer  be  voted  in  Oregon. 

Initiative  and  Referendum 

Oregon's  next  step  in  popular  government  was  the  adoption  of  the 
initiative  and  referendum  amendment  to  the  constitution,  which  amend- 
ment was  adopted  in  June,  1902,  by  a  vote  of  62,024  to  5668.  It  pro- 
vides that  legislative  authority  shall  be  vested  in  a  legislative  assembly, 
but  that  the  people  reserve  to  themselves  the  power  to  propose  laws  and 
amendments  to  the  constitution,  and  to  enact  or  reject  the  same  at  the 
polls  independent  of  the  legislative  assembly,  and  also  reserve  power  to 
approve  or  reject  at  the  polls  any  act  of  the  legislature.  An  initiative 
petition  must  be  signed  by  8  per  cent  of  the  legal  voters,  as  shown  by 
the  vote  for  supreme  judge  at  the  last  preceding  general  election,  and 
filed  with  the  Secretary  of  State  not  less  than  four  months  before  the 
election. 

A  referendum  petition  need  be  signed  by  only  5  per  cent  of  the  voters 
and  filed  with  the  Secretary  of  State  within  ninety  days  after  final 
adjournment  of  the  legislature  which  passed  the  bill  on  which  the  refer- 
endum is  demanded.  The  legislature  may  itself  refer  to  the  people  any 
act  passed  by  it.  The  veto  power  of  the  governor  does  not  extend  to 
any  measure  referred  to  the  people. 

State  publishes  Publicity  Pamphlets 

In  addition  to  the  publicity  incident  to  tlie  circulation  of  the  petitions, 
the  law  provides  that  the  Secretary  of  State  shall,  at  the  expense  of  the 
state,  mail  to  every  registered  voter  in  the  state  a  printed  pamphlet  con- 
taining a  true  copy  of  the  title  and  text  of  each  measure  to  be  submitted 
to  the  people,  and  the  proponents  and  opponents  of  the  law  have  the 
right  to  insert  in  said  pamphlet,  at  the  actual  cost  to  themselves  of  paper 
and  printing  only,  such  arguments  as  they  see  fit  to  make.  These 
pamphlets  must  be  mailed  not  later  than  fifty-five  days  before  a  general 
election  and  twenty  days  before  a  special  election. 

The  initiative  develops  the  electorate,  placing  directly  ujwn  them  the 
responsibility  for  legislation  enacted  under  its  provision ;  the  referendum 
elevates  the  legislature  because  of  the  possibility  of  its  use  in  case  of 


THE  LEGISLATURE  89 

undesirable  legislation. "  Brains,  ideas,  and  argument  rather  than  money, 
intimidation,  and  logrolling  govern  the  standards  of  legislation. 

Corporation  attorneys  must  exercise  their  mental  activities  along  con- 
structive rather  than  destructive  and  avoidance  lines.  Possibility  of  scan- 
dal is  minimized,  recipients  of  franchises  freed  from  the  imputation  of 
secret  purchase,  and  general  community  confidence  is  secured. 

Oregon's  Experience  Satisfactory 

Since  that  amendment  was  adopted  the  people  of  Oregon  have  voted 
upon  twenty-three  measures  submitted  to  them  under  the  initiative,  five 
submitted  under  the  referendum,  and  four  referred  to  the  people  by  the 
legislature.  Nineteen  measures  were  submitted  at  one  election.  That  the 
people  acted  intelligently  is  evident  from  the  fact  that  in  no  instance  has 
there  been  general  dissatisfaction  with  the  result  of  the  vote.  The  meas- 
ures submitted  presented  almost  every  phase  of  legislation,  and  some  of 
them  were  bills  of  considerable  length. 

Results  attained  under  direct  legislation  in  Oregon  compare  so  favor- 
ably with  the  work  of  a  legislative  assembly  that  an  effort  to  repeal  the 
initiative  and  referendum  would  be  overwhelmingly  defeated.  No  effort 
has  ever  been  attempted. 

It  has  been  asserted  that  the  people  will  not  study  a  large  number  of 
measures,  but  will  vote  in  the  affirmative,  regardless  of  the  merits  of 
measures  submitted.  Experience  in  Oregon  has  disproved  this,  for  the 
results  show  that  the  people  have  exercised  discriminating  judgment. 
They  have  enacted  laws  and  have  adopted  constitutional  amendments  in 
which  they  believed  and  have  defeated  those  of  which  they  did  not 
approve. 

Concrete  Illustrations 

I  will  give  several  concrete  illustrations. 

Under  the  initiative  in  1904  a  local-option  liquor  law  was  adopted  by 
a  vote  of  43,316  to  40,194.  Two  years  later  the  opponents  of  the  local- 
option  law  proposed  an  amendment  in  their  interest,  and  this  was 
defeated  by  a  vote  of  35,297  to  45,144.  It  will  be  noticed  that  in  the 
first  instance  the  issue  was  affirmatively  presented  and  in  the  second 
instance  negatively,  with  a  view  to  befogging  the  people,  but  the  popu- 
lar expression  was  the  same  in  both. 

For  many  years  city  charters  in  Oregon  had  been  made  the  trading 
stock  of  political  factions  in  the  legislature.  The  dominant  faction 
amended  city  charters  as  a  reward  to  political  allies.  Traffic  in  local 
legislation  even  went  so  far  that  it  sometimes  served  as  a  consideration 
in  election  of  United  States  senators.  But  in  1906,  having  tired  of  this 
disregard  of  the  interest  of  good  municipal  government,  the  people,  act- 
ing under  the  initiative,  adopted  a  constitutional  amendment  which  took 


90 


AMERICAN   STATE  GOVERNMENT 


away  from  the  legislature  the  power  to  enact  or  amend  a  city  charter 
and  vested  that  power  in  the  people  of  the  municipalities,  thus  establish- 
ing home  rule.  The  amendment  was  adopted  by  a  vote  of  52,567  to 
19,852. 

In  Oregon,  as  in  many  other  states,  there  has  long  been  a  feeling 
that  certain  classes  of  corporations  which  own  very  little  tangible  prop- 
erty do  not  bear  their  proper  share  of  the  burden  of  taxation.  Legisla- 
tures failed  to  provide  a  remedy.  For  the  purpose  of  securing  a  more 
equitable  distribution  of  the  burden  of  taxation  the  state  grange,  proceed- 
ing under  the  initiative,  proposed  a  law  levying  a  gross-earnings  tax  of 
3  per  cent  on  sleeping-car,  refrigerator-car,  and  oil-car  companies,  which 
measure  was  adopted  by  a  vote  of  69,635  to  6441.  The  grange  also 
proposed  a  similar  law  levying  a  gross-earnings  tax  of  3  per  cent  on  ex- 
press and  2  per  cent  on  telephone  and  telegraph  companies,  and  it  was 
adopted  by  a  vote  of  70,872  to  6360.  Each  of  these  gross-earnings  tax 
laws  applied  only  to  intrastate  business. 

That  the  people  can  and  will  study  measures  and  vote  with  discrimina- 
tion is  shown  by  the  record  upon  two  appropriation  bills  passed  by  the 
legislature  of  1907.  One  of  these  bills  proposed  to  increase  the  annual 
fixed  appropriation  for  the  state  university  from  $47,500  to  $125,000. 
The  other  bill  appropriated  $100,000  for  construction  of  armories  for  the 
National  Guard.  The  referendum  was  demanded  upon  both  measures, 
and  both  were  submitted  to  a  vote  of  the  people  at  the  general  election 
in  1908.  There  was  full  and  fair  discussion  through  the  press,  at  public 
meetings,  and  at  sessions  of  the  grange.  The  bill  increasing  the  appro- 
priation for  the  university  was  approved  by  the  people  by  a  vote  of 
44,115  to  40,535.  The  armory  appropriation  bill  was  defeated  by  a 
vote  of  33,507  to  54,848. 

I  shall  cite  but  one  more  of  many  instances  which  show  the  manner 
in  which  the  initiative  has  been  effective  in  Oregon.  For  a  great  many 
years  there  had  been  efforts  to  secure  adequate  laws  for  the  protection 
of  salmon  in  the  Columbia  River,  but  because  of  conflicting  interests 
between  the  upper  river  and  the  lower  river,  legislatures  could  not  be 
induced  to  enact  laws  that  would  protect  the  fish.  As  a  consequence 
tlic  salmon  fisheries  were  being  destroyed.  At  the  election  in  1908  the 
upper-river  fishermen  proposed  under  the  initiative  a  bill  practically  pro- 
hibiting fishing  on  the  lower  river  and  the  lower-river  fishermen  proposed 
a  bill  forbidding  fishing  on  the  upper  riv'cr.  There  was  wide  discussion 
of  both  bills,  and  the  suggestion  was  freely  made  that  both  bills  should 
be  adopted.  The  people,  disgusted  with  the  failures  of  the  legislatures 
to  enact  suitable  laws  for  the  protection  of  fish,  followed  this  suggestion, 
and  both  bills  were  enacted.  With  fishing  practically  prohibited  on  both 
sections  of  the  river,  the  legislature  in  1909  responded  to  the  ])oi)ular 
demand  by  enacting,  in  conjunction  with  the  legislature  of  the  state  of 
Washington,  a  fishery  law  which  provided  adequate  protection.    1  believe 


THE  LEGISLATURE 


91 


I  am  safe  in  saying  that  this  would  not  have  been  done  but  for  the 
popular  adoption  of  the  two  fishery  bills. 

1  do  not  care  to  take  the  time  of  the  Senate  to  discuss  each  of  the 
measures  that  have  been  acted  upon  by  the  people  of  the  state,  but  in 
order  that  those  who  desire  may  have  the  opportunity  to  observe  the 
wide  range  the  measures  have  taken  and  the  attitude  assumed  toward 
them  by  the  people  of  Oregon,  I  ask  consent  to  have  published  in  the 
Record  in  this  connection  a  very  brief  summary  of  the  tides  of  the 
measures,  together  with  the  vote  upon  each. 

Popular  Vote  upox  Measures  submitted  to  the  People  of  Oregon 
under  either  the  initiative  or  referendum 


1904 

Direct  primary  law  with  direct  selection  of  United  States  senator  ^ 
Local-option  liquor  law  ^ 

1906 

Omnibus  appropriation  bill,  state  institutions  2 

Equal-suffrage  constitutional  amendment  1 

Local-option  bill  proposed  by  liquor  people  ^ 

Bill  for  purchase  by  state  of  Barlow  toll  road  ^ 

Amendment  requiring  referendum   on  any  act  calling  constitu- 
tional convention  ^ 

Amendment  giving  cities  sole  power  to  amend  their  charters  1.    . 

Legislature  authorized  to  fix  pay  of  state  printer  1 

Initiative  and  referendum  to  apply  to  all  local,  special,  and  munici- 
pal laws  1 

Bill  prohibiting  free  passes  on  railroads  ^ 

Gross-earnings  tax  on  sleeping-car,  refrigerator-car,  and  oil-car 
companies  1 

Gross-earnings  tax  on  express, 
panics  ^ 


telephone,  and  telegraph   com- 


1908 
Amendment  increasing  pay  of  legislators  from  $120  to  $400  per 


session ' 


Amendment  permitting  location  of  state  institutions  at  places 
other  than  the  capital ' 

Amendment  reorganizing  system  of  courts  and  increasing  supreme 
judges  from  three  to  five  ^ 

Amendment  changing  general  election  from  June  to  November  ^ 

Bill  giving  sheriffs  control  of  county  prisoners  2 

Railroads  required  to  give  public  officials  free  passes'*      .    .     .    . 

Bill  appropriating  $100,000  for  armories  2 


Yes 


56,205 
43.316 

43,918 
36,902 
35.297 
31.525 

47,661 
52.567 
63.749 

47,678 
57,281 

69.635 

70,872 


19,691 
41.971 

30.243 
65,728 
60,443 
28,856 
33.507 


No 


16,354 
40,198 

26,758 
47.075 
45.144 
44.527 

18,751 

19,852 

9.571 

16.735 
16,779 

6,441 

6,360 


68,892 
40,868 

50.591 
18,590 

30.033 
59,406 

54,848 


1  Submitted  under  the  initiative. 

2  Submitted  under  the  referendum  upon  legislative  act. 

3  Submitted  to  the  people  by  the  legislature. 


92 


AMERICAN  STATE  GOVERNMENT 


Bill  increasing  fixed  appropriation  for  state  university  from 
$47,500  to  $125,000  annually  1 

Equal-suffrage  amendment  ^ 

Fishery  bill  proposed  by  fish-wheel  operators  ^ 

Fishery  bill  proposed  by  gill-net  operators  2 

Amendment  giving  cities  control  of  liquor  selling,  poolrooms, 
theaters,  etc.,  subject  to  local-option  law  2 

Modified  form  of  single-tax  amendment  2 

Recall  power  on  public  officials  2 

Bill  instructing  legislators  to  vote  for  people's  choice  for  United 
States  senators  2 

Amendment  authorizing  proportional-representation  law  2    .     .    . 

Corrupt-practices  act  governing  elections  2 

Amendment  requiring  indictment  to  be  by  grand  jury  2     .     .    .    . 

Bill  creating  Hood  River  County  2 


No 


40,535 
58,670 
40,720 
30,280 

52,346 
60,871 
31,002 

21,162 
34,128 

31.301 
28,487 
26,778 


Direct  Legislation  not  Expensive 

Anticipating  the  objection  that  direct  legislation  is  expensive  to  the 
state,  I  will  say  that  the  submission  of  a  total  of  thirty-two  measures  at 
three  different  elections  in  Oregon  has  cost  the  state  $25,000,  or  an 
average  of  about  $781  for  each  measure.  At  the  election  in  1908  there 
were  nineteen  measures  submitted,  at  a  cost  to  the  state  of  $12,362,  or 
an  average  of  about  $651  each.  Five  of  these  nineteen  measures  were 
submitted  without  argument.  Upon  the  other  fourteen  measures  there 
were  nineteen  arguments  submitted,  for  which  the  authors  paid  the  cost, 
amounting  to  $3157. 

I  have  no  hesitancy  in  saying  that  the  people  of  Oregon  feel  satisfied 
that  they  have  received  full  value  for  the  $25,000  they  have  spent  for 
the  submission  of  measures  under  the  initiative  and  referendum.  The 
only  persons  who  raise  the  question  of  cost  are  those  who  would  be 
opposed  to  direct  legislation  if  it  were  free  of  cost.  I  think  I  could  cite 
numerous  instances  of  laws  passed  by  the  legislature  which  cost  the 
people  much  more  than  $25,000  without  any  tangible  return,  and  per- 
haps could  cite  a  few  measures  which  had  been  defeated  by  legislatures 
with  resultant  loss  to  the  people  of  many  times  $25,000.  The  cost  of 
legislation  cannot  always  be  measured  in  dollars. 


People  Intelligent  and  Fair 

The  people  are  not  (;nly  intelligent,  but  fair  and  honest.  When  the 
initiative  and  referendum  was  under  consideration  it  was  freely  predicted 
by  enemies  of  popular  government  that  the  power  would  be  abused  and 

1  Submitlcd  under  the  referendum  upon  legislative  act. 

2  Submitted  under  the  initiative. 


THE  LEGISLATURE 


93 


that  capitalists  would  not  invest  their  money  in  a  state  where  property 
would  be  subject  to  attacks  of  popular  passion  and  temporary  whims. 
Experience  has  exploded  this  argument.  There  has  been  no  hasty  or 
ill-advised  legislation.  The  people  act  calmly  and  deliberately  and  with 
that  spirit  of  fairness  which  always  characterizes  a  body  of  men  who 
earn  their  living  and  acquire  their  property  by  legitimate  means.  Cor- 
porations have  not  been  held  up  and  blackmailed  by  the  people,  as  they 
often  have  been  by  legislators.  "  Pinch  bills  "  are  unknown.  The  people 
of  Oregon  were  never  before  more  prosperous  and  contented  than  they 
are  to-day,  and  never  before  did  the  state  offer  such  an  inviting  field  for 
investment  of  capital.  Not  only  are  two  transcontinental  railroads  build- 
ing across  the  state,  but  several  interurban  electric  lines  are  under  con- 
struction, and  rights  of  way  for  others  are  in  demand. 

I  have  mentioned  all  of  these  facts  for  the  purpose  of  showing  that 
the  people  of  my  state,  and,  I  believe,  the  people  of  every  other  state, 
can  be  trusted  to  act  intelligently  and  honestly  upon  any  question  of 
legislation  submitted  for  their  approval  or  disapproval. 

The  initiative  and  referendum  is  but  one  of  the  features  of  popular 
government  in  Oregon.  It  has  been  the  means  by  which  other  reforms 
and  progressive  laws  and  constitutional  amendments  have  been  secured, 
for  it  has  been  found  that  the  people  cannot  always  get  the  laws  they 
desire  through  the  legislature,  but  can  get  them  through  resort  to  the 
initiative. 

Direct-Primary  Law 

The  next  step  after  the  adoption  of  the  initiative  and  referendum  was 
the  adoption,  in  1904,  by  a  vote  of  56,205  to  16.354,  of  a  direct-primary 
law,  which  is  designed  to  supersede  the  old  and  unsatisfactory  conven- 
tion system.  The  Oregon  direct-priman,'  law  provides  for  a  primary  elec- 
tion to  be  held  forty-five  days  prior  to  the  general  election  at  the  usual 
polling  places  and  with  the  usual  three  election  judges  and  three  clerks 
in  charge,  appointed  by  the  county  courts.  Not  more  than  two  judges 
or  clerks  can  be  members  of  the  same  political  part}-.  Two  sets  of 
ballots  are  provided,  one  for  the  Democratic  party  and  one  for  the 
Republican  party.  Any  party  polling  25  per  cent  of  the  vote  at  the 
previous  election  is  brought  under  the  provisions  of  the  direct-primary 
law,  but  thus  far  only  the  Democratic  and  Republican  parties  are 
affected  by  it. 

Any  legal  voter  may  become  a  candidate  in  the  primaries  for  nomina- 
tion for  any  office  by  filing  a  petition  signed  by  a  certain  per  cent  of  the 
voters  of  his  party.  If  the  nomination  is  for  a  municipal  or  county 
ofiftce,  the  petition  must  include  registered  electors  residing  in  at  least 
one  fifth  of  the  voting  precincts  of  the  count)%  municipality,  or  district 
If  it  be  a  state  or  district  office  and  the  district  comprises  more  than  one 
county,  the  petition  must  include  electors  residing  in  each  of  at  least  one 


94  AMERICAN  STATE  GOVERNMENT 

eighth  of  the  precincts  in  at  least  two  counties  in  the  district.  If  it  be 
an  office  to  be  voted  for  in  the  state  at  large,  the  petition  must  include 
electors  residing  in  each  of  at  least  one  tenth  of  the  precincts  in  each  of 
at  least  seven  counties  of  the  state.  If  it  be  an  office  to  be  voted  for  in 
a  congressional  district,  the  petition  must  include  electors  residing  in  at 
least  one  tenth  of  the  precincts  in  each  of  at  least  one  fourth  of  the 
counties  in  the  district.  The  number  of  signers  required  is  at  least 
2  per  cent  of  the  party  vote  in  the  electoral  district,  but  not  more  than 
one  thousand  signers  are  required  for  a  state  or  congressional  office  nor 
more  than  five  hundred  in  any  other  case.  Petitions  must  be  filed  for  a 
state  or  district  office  at  least  twenty  days  before  the  primary  election, 
and  for  county  or  municipal  offices  fifteen  days  before  the  election. 
Names  of  the  candidates  are  arranged  on  the  ballots  in  alphabetical 
order.  The  ballot  for  the  Republican  party  is  printed  on  white  paper,  that 
for  the  Democratic  party  on  blue  paper,  and  that  for  any  other  party  on 
yellow  paper.  The  Australian-ballot  form  is  used  in  the  primaries.  No 
elector  is  qualified  to  vote  at  a  party-primary  election  unless  he  has 
registered  and  designated,  under  oath,  his  party  affiliation,  except  that 
he  may  register  at  the  polls  on  election  day  by  filing  an  affidavit,  verified 
by  six  freeholders  of  his  precinct,  certifying  to  his  legal  qualifications,  in 
which  affidavit  he  must  also  designate  his  party  affiliation. 

Party  Integrity  Protected 

No  voter  is  required  to  designate  his  party  affiliation  in  order  to  vote 
at  the  general  election,  but  registration  of  party  affiliation  is  a  prerequi- 
site to  participation  in  a  party  primary.  This  requirement  prevents  the 
participation  of  members  of  one  party  in  the  primaries  of  another  party. 
The  right  of  each  party  to  choose  its  own  candidates  is  thus  protected, 
and  an  evil  all  too  common  where  restrictive  parly-primary  laws  are  not 
in  force  is  avoided. 

Our  direct-primary  law  further  provides  that  the  candidate  in  his 
petition  shall,  among  other  things,  agree  to  "  accept  the  nomination  and 
will  not  withdraw  ";  and,  if  elected,  "  will  qualify  as  an  officer,"  implying, 
of  course,  that  he  will  also  serve.  Each  candidate  is  entitled  to  have 
placed  in  his  petition  a  statement  in  not  to  exceed  one  hundred  words, 
and  on  the  ballot,  after  his  name,  a  legend  in  not  to  exceed  twelve  words, 
.setting  forth  any  measures  or  principles  he  especially  advocates. 

In  the  case  of  a  legislator's  nomination  the  candidate  may,  in  addition 
to  his  statement,  not  exceeding  one  hundred  words  specifying  measures 
and  principles  he  advocates,  also  subscribe  to  one  of  two  statements ;  but 
if  he  does  not  so  subscribe,  he  shall  not  on  that  account  be  delxirred  from 
the  ballot.  1 1  will  be  .seen,  therefore,  that  three  courses  are  open  to  him. 
He  may  subscribe  to  Statement  No.  i ,  as  follows : 


THE  LEGISLATURE  95 

I  further  state  to  the  people  of  Oregon,  as  well  as  to  the  people  of  my  legis- 
lative district,  that  during  my  term  of  office  I  shall  always  vote  for  that  candi- 
date for  United  States  senator  in  Congress  who  has  received  the  highest 
number  of  the  people's  votes  for  that  position  at  the  general  election  next 
preceding  the  election  of  a  senator  in  Congress,  without  regard  to  my  individual 
preference. 

Or  he  may  subscribe  to  Statement  No.  2,  as  follows: 

During  my  term  of  office  I  shall  consider  the  vote  of  the  people  for  United 
States  senator  in  Congress  as  nothing  more  than  a  recommendation  which  I 
shall  be  at  liberty  to  wholly  disregard  if  the  reason  for  doing  so  seems  to  me 
to  be  sufficient. 

Or  he  may  be  perfectly  silent  on  the  election  of  United  States  senator. 
It  is  entirely  optional  with  the  candidate. 


Popular  Vote  for  United  States  Senator 

The  law-  further  provides  that  the  L^'nited  States  senators  may  be 
nominated  by  their  respective  parties  in  the  part}'  primaries,  and  the 
candidate  receiving  the  greatest  number  of  votes  thereby  becomes  the 
party  nominee.  Then  in  the  general  election  the  party  nominees  are 
voted  for  by  the  people,  and  the  individual  receiving  the  greatest  number 
of  votes  in  the  general  election  thereby  becomes  the  people's  choice  for 
United  States  senator. 

Notwithstanding  that  our  primary-election  law  embodying  these  state- 
ments, particularly  Statement  No.  i,  was  passed  by  a  popular  vote  of 
approximately  56,000  for  to  16,000  against,  the  opponents  of  the  law 
charged  that  the  people  did  not  know  what  they  were  doing  when  they 
voted  for  it.  Therefore  the  advocates  of  the  election  of  senators  by  the 
people  and  of  the  enforcement  of  Statement  No.  i  submitted  to  the 
people  under  the  initiative  in  1908  the  following  bill: 

Be  it  enacted  by  the  people  of  the  state  of  Oregon  : 

Section  i.  That  we,  the  people  of  the  state  of  Oregon,  hereby  instruct 
our  representatives  and  senators  in  our  legislative  assembly,  as  such  officers, 
to  vote  for  and  elect  the  candidates  for  United  States  senators  from  this  state 
who  receive  the  highest  number  of  votes  at  our  general  elections. 

Although  there  was  no  organized  campaign  made  for  the  adoption  of 
this  bill  other  than  the  argument  accompanying  its  submission,  while  the 
opponents  of  the  primary  law  assailed  it  vehemently,  the  basic  principle 
of  Statement  No.  i  and  the  election  of  United  States  senators  by  the 
people  was  again  indorsed  by  the  passage  of  the  bill  by  a  popular  vote 
of  69,668  for  it  to  21,162  against  it,  or  by  nearly  3^  to  i. 


96  AMERICAN  STATE  GOVERNMENT 

How  A  Democrat  was  elected  Senator 

Mr.  President,  in  this  connection  I  deem  it  proper  to  divert  for  a  time 
from  an  explanation  of  our  primary  law  and  give  a  concrete  illustration 
of  its  operation.  Both  my  colleague,  Senator  Chamberlain,  and  myself 
were  selected  by  the  people  and  elected  by  the  legislature  under  the  pro- 
vision of  this  law.  Opponents  of  popular  government,  and  especially  of 
the  election  of  United  States  senators  by  a  direct  vote  of  the  people, 
have  bitterly  assailed  Statement  No.  i  of  our  law  because  a  legislature, 
overwhelmingly  Republican,  elected  my  colleague,  who  was  a  candidate 
selected  by  the  Democratic  party  and  nominated  by  the  whole  electorate 
of  the  state  as  the  people's  choice  of  our  state  for  United  States  senator. 
Upon  reflection  I  think  every  intelligent  man  who  is  honest  with  himself 
must  concede  that  this  fact,  instead  of  being  the  basis  of  a  criticism,  is 
the  highest  kind  of  evidence  as  to  the  efficacy  of  the  law,  and  ever}'  ad- 
vocate of  the  election  of  United  States  senators  by  a  popular  vote  must 
realize  that  Oregon  has  evolved  a  plan  through  its  Statement  No.  i,  pro- 
vision of  its  primarv'  law,  wherein,  in  effect,  the  people  enjoy  the  privilege 
of  selecting  their  United  States  senators,  and,  through  the  cr)-stallization 
of  public  opinion,  the  legislative  ratification  of  their  action. 

The  Oregon  legislature  consists  of  ninety  members,  thirty  in  the  Sen- 
ate and  sixty  in  the  House,  forty-six  making  the  necessary  majority  on 
full  attendance  for  the  election  of  United  States  senator.  Fifty-one  mem- 
bers out  of  ninety  of  the  legislature  which  elected  my  colleague,  Senator 
Chamberlain,  were  subscribers  to  Statement  No.  i,  making  on  joint  bal- 
lot a  majority  of  six  out  of  a  total  of  ninety  members.  All  of  these  fifty- 
one  members  subscribed  to  Statement  No.  i  pledge  voluntarily,  and  it 
was  so  subscribed  to  by  them  from  a  personal  belief  in  the  desirability 
of  the  popular  election  of  United  States  senators,  and  for  the  purpose 
of  securing  for  themselves,  from  the  electorate,  preferment  in  the  election 
to  the  office  sought ;  the  consideration  in  exchange  for  such  preferment 
was  to  be  by  them,  as  the  legally  constituted  representatives  of  the  elec- 
torate in  their  behalf,  the  perfunctory  confirmation  of  the  peoj^le's  selec- 
tion of  United  States  senator  as  that  choice  might  be  ascertained  under 
the  provisions  of  the  same  law  by  which  the  legislators  themselves  secured 
nomination  to  office. 

To  further  illuminate  the  situation,  1  will  state  that  in  the  primaries 
held  in  April,  1908,  H.  M.  Cake  received  the  Republican  nomination  for 
United  States  senator,  and  my  colleague,  Senator  Chamberlain,  then 
governor  of  the  state,  received  the  Democratic  nomination  for  I'nited 
States  senator.  At  the  general  election  in  June,  Senator  Chamberlain  de- 
feated Mr.  Cake,  notwithstanding  the  state  was  overwhelmingly  Repub- 
lican, thereby  developing  from  the  Democratic  candidate  into  the  people's 
choice  for  Ignited  States  senator.  The  normal  Republican  majoritv  in 
Oregon,  1  think,  is  from  fifteen  thousand  to  twenty  thousand.    With  full 


THE  LEGISLATURE 


97 


recognition  of  Governor  Chamberlain's  ability  and  fitness  for  the  office, 
the  fact  that  for  nearly  six  years  he  made  the  best  governor  Oregon  ever 
had,  and  considering  that  undoubtedly  he  is  the  most  popular  man  in  our 
state,  I  deem  it  but  just  to  the  law,  and  a  proper  answer  to  the  criticism 
of  enemies  of  the  law  that  it  destroys  party  lines  and  integrity,  to  state 
that,  in  my  opinion,  Senator  Chamberlain  received  the  votes  of  several 
thousand  Republican  enemies  of  the  law,  who  believed  that  in  selecting 
Governor  Chamberlain,  a  Democrat,  they  would  prevent  a  Republican 
legislature  from  ratifying  the  people's  selection,  obeying  the  people's  in- 
structions, and  electing  as  United  States  senator  the  individual,  regard- 
less of  party,  that  the  people  might  select  for  that  office.  Thus  they 
hoped  to  make  the  primary  law  and  Statement  No.  i  odious,  and  sought 
to  create  what  they  thought  would  be  an  impossible  condition  by  forcing 
upon  a  Republican  legislature  for  confirmation  the  popularly  designated 
Democratic  candidate  for  the  United  States  Senate.  They  failed  to 
realize  that,  greater  than  party  and  infinitely  greater  than  any  individual, 
the  people's  choice  becomes  a  representative  of  the  principle  and  of  the 
law ;  that  the  intelligence  and  integrity  of  the  whole  electorate  of  the 
state,  as  well  as  the  integrity  and  loyalty  of  the  members  of  the  legisla- 
ture, were  at  stake ;  and  from  any  honorable  viewpoint  the  mere  intima- 
tion of  the  possibility  of  the  legislature  or  any  member  of  the  legislature 
failing  conscientiously  to  fulfill  his  pledge  or  loyally  obey  the  instructions 
of  the  people  would  not  only  be  an  insult  to  the  individual  members  of 
the  legislature,  but  an  insult  to  the  intelligence,  independence,  and  pa- 
triotism of  the  Oregon  electorate  that  they  would  permit  such  action  to 
go  unnoticed  or  without  holding  the  culprit  to  a  rigid  responsibility  for 
his  treason. 

No  Oath  more  Sacred 

Let  us  again  consider  the  wording  of  this  Statement  No.  i  pledge, 
taken  by  fifty-one  members  of  the  Oregon  legislature : 

Statement  No.  i 

I  further  state  to  the  people  of  Oregon,  as  well  as  to  the  people  of  my  leg- 
islative district,  that  during  my  term  of  office  I  will  always  vote  for  that  candi- 
date for  United  States  senator  in  Congress  who  has  received  the  highest 
number  of  the  people's  votes  for  that  position  at  the  general  election  next  pre- 
ceding the  election  of  a  senator  in  Congress,  without  regard  to  my  individual 
preference. 

No  oath  could  be  more  sacred  in  honor,  no  contract  more  binding,  no 
mutual  consideration  more  definite,  than  is  contained  in  this  Statement 
No.  I  pledge,  and  no  parties  to  a  contract  could  be  of  more  consequence 
to  government  and  society  than  the  electorate  upon  the  one  side  and  its 
servants  upon  the  other. 


98  AMERICAN  STATE  GOVERNMENT 

Under  the  United  States  Constitution  there  can  be  no  penalty  attached 
to  the  law.  The  legislator  breaking  his  sacred  pledge  cannot  be  im- 
prisoned or  fined  ;  hence  he  is  doubly  bound  by  honor  to  redeem  his  vol- 
untary obligations.  Failure  to  do  so  would  not  only  brand  him  as  the 
destroyer  of  a  sacred  trust,  but  as  the  most  contemptible  of  cowards, 
because  legally  immune  from  punishment  for  his  perfidy. 

Yet,  Mr.  President,  there  were  efforts  made  to  dishonor  our  state  and 
our  public  servants.  During  the  session  of  the  legislature  a  former  gov- 
ernment official,  an  assistant  to  the  chairman  of  the  Republican  National 
Committee,  appeared  in  Oregon  and,  I  am  informed,  promised  federal 
appointments  to  legislative  members  if  they  would  disregard  their  State- 
ment No.  I  pledges  to  the  electorate.  The  effort  was  made  by  the 
enemies  of  the  law  to  create  the  impression  that  by  reason  of  this  per- 
son's relations  with  the  chairman  of  the  Republican  National  Committee 
during  the  national  campaign,  he  would  be  able  to  deliver  these  promised 
federal  appointments  in  case  Statement  No.  i  subscribers  sold  their  honor 
and  betrayed  their  trust. 

I  mention  these  facts  to  show  that  the  greatest  possible  strain  was 
placed  upon  our  law,  and  to  the  credit  of  the  fifty-one  subscribers  of 
Statement  No.  i  in  that  legislature  be  it  said  that  every  one  of  those  sub- 
scribers voted  in  accordance  with  his  solemn  obligation.  But  I  would 
call  the  attention  of  the  Senate  to  the  fact  that,  notwithstanding  the  people 
of  the  state  had  passed  under  the  initiative  the  bill  I  have  referred  to,  in- 
structing all  the  members  of  the  legislature  to  vote  for  the  people's  choice 
for  United  States  senator,  not  a  single  member  of  the  legislature  obeyed 
said  instructions  except  the  Statement  No.  i  -subscribers. 

An  Evolution  of  Practical  Politics 

Mr.  President,  Statement  No.  i  was  an  evolution  of  many  years'  ex- 
perience with  practical  and  commercial  politics.  We  doubtless  all  have 
found  in  individual  cases  that  men's  memories,  pledges,  and  agreements 
were  a  negligible  quantity,  but  I  think  we  in  Oregon  have  demonstrated 
that  our  direct-primary  law  contains  a  pledge  that  will  hold  any  sane  man, 
regardless  of  his  cupidity,  ambition,  cowardice,  or  temerity. 

Other  Provisions  of  Primary  Law 

Resuming  consideration  of  the  direct  primary :  The  returns  from  a 
primary  election  are  canvas.scd  in  the  same  manner  as  the  returns  from 
a  general  election,  and  the  candidate  receiving  the  highest  vote  for  each 
office  is  declared  the  nominee  of  his  party.  Candidates  of  parties  other 
than  those  polling  25  per  cent  of  the  total  vote  of  tlu-  state  may  be 
nominated  without  participating  in  the  direct  primary,  but  by  means 
of  petition  r)r  mass  meeting.    No  candidate  nominated  otherwise  than  in 


THE  LEGISLATURE 


99 


the  direct  primary  can  use  either  the  word  "  Republican  "  or  "  Demo- 
crat "  in  any  form ;  that  is,  the  nominees  of  the  direct  primary  are  en- 
titled to  the  party  designation  in  the  general  election,  and  no  opposition 
candidate  can  designate  himself  as  an  "  Independent  Republican "  or 
"  Progressive  Republican,"  or  use  any  other  qualifying  term  which  in- 
cludes the  word  "  Republican  "  or  "  Democrat."  These  provisions  secure 
to  the  nominees  of  the  direct  primar}'  the  exclusive  right  to  their  party 
designation  on  the  ballot  in  the  general  election.  Each  candidate  in  the 
direct  primary  is  entitled  to  have  placed  in  his  petition  for  nomination  a 
statement  containing  not  to  exceed  one  hundred  words,  and  on  the  ballot 
in  the  primary  and  general  election  a  legend  of  not  more  than  twelve 
words,  specifying  any  measures  or  principles  he  especially  advocates. 

In  my  opinion  the  direct  primary  is  the  only  practicable  method  of 
fully  securing  to  the  people  their  right  to  choose  their  public  servants. 

Convention  Nominee  under  Obligation  to  a  Boss 

Under  the  convention  system  the  members  of  a  party  delegate  their 
power  of  selection  of  candidates  to  the  members  of  a  convention.  To  my 
mind  this  system  is  most  pernicious,  because  the  party  electorate  feels 
that  its  responsibility  ceases  with  the  selection  of  its  convention  dele- 
gates. Hence  the  responsibility  of  citizenship  is  weakened  and  shiftless- 
ness  encouraged. 

As  soon  as  the  delegates  to  the  convention  are  chosen  the  power  of 
selection  of  public  servants  becomes  centralized  in  a  few  and  opportunity 
is  extended  to  individuals  and  interests  who  wish  to  use  public  servants 
for  selfish  or  ulterior  purposes.  Influences  adverse  to  the  general  wel- 
fare are  immediately  brought  to  bear  upon  this  body  of  delegates.  Fac- 
tions are  created,  combinations  effected,  and  party  disruption  frequently 
results.  Often  a  convention  nominates  a  man  for  public  office  who,  prior 
to  the  convention,  was  never  seriously  considered  as  a  probable  nominee. 

In  my  thirty  years'  experience  in  politics  quite  frequently  have  I  seen 
this  the  case.  This  strengthens  my  conviction  that  the  prevailing  system 
of  convention  selections  of  party  candidates  is  not  representative,  but 
misrepresentative,  form  of  government.  The  people  certainly  have  no 
voice  in  the  selection  of  candidates  when  their  temporary  representatives 
had  no  idea  of  making  a  selection  until  occurrences  transpiring  during 
the  convention  determined  their  action. 

Let  us  look  at  the  system  in  vogue  in  the  selection  of  delegates.  In 
most  cases  where  convention  nominations  are  made  we  can  trace  back 
to  the  political  boss  and  machine  the  preparation  of  a  slate  of  delegates. 
In  the  selection  of  the  individuals  composing  the  slate  the  political  boss 
has  in  mind  the  perpetuation  of  his  own  power,  and  selects  individuals 
whose  interests  are  identical  with  his  or  whom  he  thinks  he  can  direct 
and  control,  though  occasionally,  if  anticipating  a  struggle,  he  will  select 


lOO  AMERICAN   STATE  GOVERNMENT 

a  few  men  whose  standing  in  the  community  will  bring  strength  to  the 
slate  he  has  prepared  in  order  to  carry  out  his  purposes.  Independent 
men  are  selected  only  where  it  is  deemed  necessary  by  the  political  boss 
to  deceive  the  public  and  secure  sufficient  support  from  the  personal  in- 
fluence of  those  few  selections  to  carry  through  the  slate  made  up  chiefly 
of  his  willing  tools.  This  system  prevails  not  only  in  selection  of  dele- 
gates to  county  conventions,  but  in  selection  of  delegates  to  congressional, 
state,  and  national  conventions  as  well.  The  result  is  inevitable  that  the 
delegates  nominate  candidates  whom  the  machine  and  political  bosses 
desire,  except  in  rare  cases  where  a  few  independent  men  are  able,  by 
presentation  of  arguments  against  the  qualifications  of  a  machine  candi- 
date, to  demonstrate  to  the  convention  the  probability  of  the  defeat  of 
the  man  slated  for  the  position.  Frequently,  of  course,  a  case  is  pre- 
sented where  the  boss  has  made  promises  to  various  aspirants  for  the 
same  office,  in  which  case  he  excuses  himself  to  the  disappointed  aspirant 
by  explaining  that  he  was  unable  to  control  the  convention.  Thus  men- 
dacity and  treachery  are  fostered  by  the  convention  system,  which,  by  the 
primary  system,  are  absolutely  eliminated. 

Under  the  convention  system  the  nominee  realizes  that  his  nomination 
is  due  chiefly,  if  not  entirely,  to  the  boss.  With  this  knowledge  naturally 
goes  a  feeling  of  obligation,  so  that  the  nominee,  when  elected,  is  desirous, 
whenever  possible,  of  acceding  to  the  wishes  of  the  man  to  whom  his 
nomination  is  due.  Thus  the  efficiency  and  independence  of  the  public 
servant  is  seriously  affected  and  his  duty  to  the  public  in  many  cases 
completely  annihilated. 

Nominee  of  Direct  Primary  Responsible  to  People  Alone 

How  different  in  its  operation  is  the  direct  primary.  The  man  who 
seeks  a  nomination  under  the  direct-primary  system  must  present  before 
the  members  of  his  party  the  policies  and  principles  by  whicli  he  will  be 
governed  if  nominated  and  elected.  He  must  submit  to  them  his  past 
record  in  public  and  private  life.  Promises  made  to  political  bosses  or 
machine  managers  will  have  no  beneficial  influence  in  determining  the 
result,  and  therefore  the  candidate  is  not  tempted  to  place  himself  under 
obligations  to  any  interests  adverse  to  those  of  the  general  public.  The 
members  of  a  party  have  it  within  their  ])ower  to  determine  which  of  the 
candidates  best  represents  their  ideas  and  wishes.  After  they  have  made 
their  selections  the  candidates  of  opposing  parties  must  stand  before  the 
people  at  the  general  election,  when  a  choice  will  be  made  between 
them.  A  public  servant  thus  chosen  owes  his  election  to  no  faction, 
machine,  or  boss,  but  to  the  members  of  his  party  and  the  electorate 
of  his  state  or  district.  He  is  accountable  to  them  alone  for  his  conduct 
in  office,  and  has  therefore  every  incentive  to  render  the  best  possible 
public  service.     How  different  in  all  essentials  from  the  ]K)sition  of  the 


THE  LEGISLATURE  lOl 

candidate  who  has  received  his  nomination  at  the  hands  of  a  convention 
controlled  by  a  political  machine. 

The  great  masses  of  the  people  are  not  only  intelligent,  but  honest. 
They  have  no  selfish  interests  to  serve  and  ask  nothing  of  their  public 
officials  but  faithful  and  efficient  service.  Only  the  very  few  have  inter- 
ests adverse  to  those  of  the  general  welfare.  The  people  therefore  act 
only  for  public  good  when  they  choose  between  candidates  for  the  nomi- 
nation or  candidates  for  election. 

The  direct  primary  encourages  the  people  of  the  country  to  study  pub- 
lic questions  and  to  observe  and  pass  judgment  upon  the  acts  of  their 
public  officials.  This  in  itself  tends  very  strongly  to  the  building  up  of 
a  better  citizenship. 

Honest  selections  mean  honest  government  and  better  public  servants. 

Public  servants  who  lack  confidence  in  the  intelligence  or  honesty  of 
the  people  will  find  their  feelings  reciprocated. 

Primary  Laws  protect  Parties 

Many  claim  that  primary  laws  destroy  party.  In  my  opinion  they  pro- 
tect and  cement  parties.  Party  success  depends,  under  primary  laws, 
upon  the  ideas  and  principles  advocated  and  the  nominations  made  by 
the  parties  in  their  primaries.  If  a  majority  party  fails  to  make  proper 
nominations,  or  if  the  minority  party  has  better  material  in  its  electorate, 
then  a  minority  party  would  rapidly  develop  into  a  majority  party  and 
rightly  so.  Under  a  direct-primary  law  no  individual  can  acquire  a  large 
personal  following  or  build  up  a  personal  organization,  except  such  a  fol- 
lowing as  would  support  the  individual  on  account  of  the  principles  ad- 
vocated by  him  or  the  demonstration  made  by  him  as  a  public  servant. 
But  no  man  would  be  able  to  transfer  such  a  following  for  or  against 
another  individual,  though  he  might  influence  thousands  or  hundreds  of 
thousands  of  voters  to  support  his  ideas,  constructive  suggestions,  or  pro- 
posed solution  of  pending  problems.  This  does  not  destroy  party,  but 
elevates  and  strengthens  it,  and  fortunate  indeed  is  that  party  which 
possesses  in  its  electorate  one  or  more  individuals  who  are  able  to  advance 
new  ideas  or  evolve  solutions  which  appeal  to  the  sound  judgment  of 
his  fellow  men. 

Popular  Selection  of  President  and  Vice  President 

For  years  the  desirability  of  popular  selection  of  candidates  for  Presi- 
dent and  A^ice  President  has  grown  upon  my  mind.  By  adoption  of  such 
a  plan  presidents  would  be  relieved  of  prenomination  or  preelection  ob- 
ligations, except  the  obligation  of  good  service  to  all  the  people.  Thus 
accountability  to  the  people  alone  would  be  established  and  aspirants  for 
the  presidency  would  be  free  from  the  necessity  of  consulting  the  wishes 


I02  AMERICAN   STATE  GOVERNMENT 

of  men  who  make  and  manipulate  conventions.  To  render  good  public 
service  would  be  the  sole  desire,  for  reelection  would  depend  upon  dem- 
onstration of  capability  and  fitness  for  office.  Because  of  this  conviction 
I  have  arranged  to  submit,  under  the  initiative,  to  the  people  of  Oregon 
at  the  next  general  election  a  bill  further  enlarging  the  scope  of  our  pres- 
ent primary  law.  It  provides  for  the  direct-primary  election  of  delegates 
to  national  conventions,  selections  of  presidential  electors,  and  gives  the 
opportunity  to  the  elector  in  his  party  primary  to  express  his  preference 
for  President  and  Vice  President. 

I  am  confident  that  the  people  of  Oregon  will  enact  this  law,  and  I 
hope  that  other  states  will  follow  her  example,  in  which  event,  through 
the  crystallization  of  public  opinion,  a  method  of  popular  selection  of 
presidents  and  vice  presidents  would  be  secured  without  violation  of 
the  federal  Constitution. 

Not  a  Revolutionary  Change 

The  declaration  by  each  state  of  its  choice  for  President  would  be  in 
no  sense  a  wider  departure  from  the  Constitution  than  was  the  trans- 
formation of  the  electoral  college  into  a  mere  registering  or  recording 
board,  yet  no  one  now  thinks  such  change  in  any  wise  revolutionar}'.  The 
theory  of  the  Constitution  was  that  each  state  should  choose  a  body  of 
electors  who  should  have  choice  —  election  —  as  to  those  for  whom  they 
should  vote  for  President  and  Vice  President.  This  theory  we  find  ex- 
pressed in  all  the  expositor)'  letters  and  pamphlets  written  by  those  who 
drafted  the  Constitution.  The  electors  were  to  be  free  men,  bound  to 
no  candidate  nor  to  any  party.  They  were  to  meet  and  survey  the  whole 
country,  choosing  therefrom,  according  to  their  own  unhampered  and 
wisest  judgment,  the  man  best  fitted  to  be  the  head  of  the  nation.  This 
was  the  law  in  1789,  and  it  is  the  law  to-day.  Theoretically  and  legally 
the  electoral  college  which  casts  its  perfunctory  vote  for  Mr.  Taft  and 
Mr.  Sherman  might  have  elected  Mr.  Bryan  and  Mr.  Kerns.  Had  this 
been  done,  all  the  vast  power  of  the  Supreme  Court  could  not  have  set 
the  election  aside  or  compelled  a  true  registration  of  the  popular  decision 
as  expressed  at  the  polls.  The  Constitution  of  the  United  States  was 
changed  a  hundred  years  ago  by  force  of  mere  popular  acceptation  and 
general  usage,  so  that  its  machinery  to-day  is  used  to  effect  an  end  which 
it  does  not  in  its  letter  express,  and  did  not  in  its  conception  anticipate. 
We  have  made  the  constitutional  machinery  suit  our  idea  of  the  way  this 
government  should  be  conducted. 

We  have  said  that  it  was  better  that  we  .should,  by  means  of  political 
parties,  choose  candidates  and  by  moral  force  bind  the  electors  whom  we 
nominate  to  vote  for  such  candidates,  than  that  we  should  leave  the  elec- 
tf)rs  we  might  choose  free  to  do  as  they  saw  fit.  We  have  converted 
the  elector  into  an  agent  —  a  messenger  if  you  will  —  whose  honorable 


THE  LEGISLATURE 


103 


duty  it  is  to  cast  a  ballot  for  one  who  may  not  be  his  personal  choice  for 
President,  or  whom,  indeed,  he  may  regard  as  unfitted  for  the  position  of 
President.  The  constitutional  theory  has  been  abandoned  and  one  more 
democratic  has  been  substituted.  We  evolved  a  presidential-election  plan 
which,  while  departing  from  the  philosophy  of  the  makers  of  our  national 
organic  law,  preserved  its  letter  and  made  it  subser\'e  the  purpose  of  a 
society  more  highly  developed  than  that  existent  when  the  law  was  made. 
This  is  the  history  of  all  written  law.  There  is  nothing  startling  in  the 
proposal  that  the  Constitution  or  any  other  law  shall  be  so  interpreted  as 
to  meet  modern  needs  and  thought.  We  moved  toward  democracy  when 
we  abolished  the  elector  as  an  elector  and  left  him  but  a  figurehead,  and 
it  will  be  a  much  less  radical  move  to  give  instructions  by  popular  vote 
to  the  delegate  who  names  the  party  candidate.  Indeed,  it  would  appear 
that  to  follow  the  latter  course  would  be  to  do  no  more  than  institute  a 
procedure  complementary  to  the  former. 

Corrupt-Practices  Act 

The  next  step  in  popular  government  in  Oregon  after  the  adoption  of 
the  direct-primary  law  was  the  adoption  of  a  corrupt-practices  act,  which 
the  legislature  had  refused  to  enact,  but  which  the  people  of  the  state 
adopted  under  the  initiative. 

The  corrupt-practices  act  was  adopted  under  the  initiative  in  1908  by 
popular  vote  of  54,042  to  31,301.  It  provides  that  no  candidate  for 
office  shall  expend  in  his  campaign  for  nomination  more  than  15  per 
cent  of  one  year's  compensation  of  the  office  for  which  he  is  a  candidate, 
provided  that  no  candidate  shall  be  restricted  to  less  than  $100. 

Publicity  Pamphlet 

The  act  provides,  however,  for  the  publication  of  a  pamphlet  by  the 
Secretary  of  State  for  the  information  of  voters,  in  which  pamphlet  a  can- 
didate in  the  primary  campaign  may  have  published  a  statement  setting 
forth  his  qualifications,  the  principles  and  policies  he  advocates  and  favors, 
or  any  other  matter  he  may  wish  to  submit  in  support  of  his  candidacy. 
Each  candidate  must  pay  for  at  least  one  page,  the  amount  to  be  paid 
varying  from  $100  for  the  highest  office  to  $10  for  the  minor  offices. 
Every  candidate  may  secure  the  use  of  additional  pages  at  $100  per 
page,  not  exceeding  three  additional  pages.  Any  person  may  use  space 
in  this  pamphlet  in  opposition  to  any  candidate,  the  matter  submitted  by 
him  being  first  ser\'ed  upon  the  candidate  and  the  space  being  paid  for 
the  same  as  in  the  case  of  candidates.  The  matter  submitted  in  opposi- 
tion to  candidates  must  be  signed  by  the  author,  who  is  subject  to  the 
general  laws  regarding  slander  and  libel.  Information  regarding  state  and 
congressional  candidates  is  printed  in  a  pamphlet  issued  by  the  Secretary 


I04  AMERICAN   STATE  GOVERNMENT 

of  State,  one  copy  being  mailed  to  each  registered  voter  in  the  state. 
Pamphlets  regarding  county  candidates  are  issued  by  the  county  clerk 
and  mailed  to  each  voter  in  the  county.  These  pamphlets  must  be  mailed 
at  least  eight  days  before  the  primary  election.  The  amount  of  money 
paid  for  space  in  the  public  pamphlet  of  information  is  not  considered 
in  determining  the  amount  each  candidate  has  expended  in  his  campaign  ; 
that  is,  he  is  entitled  to  expend  in  his  primary  campaign  15  per  cent  of 
one  year's  compensation  in  addition  to  what  he  pays  for  space  in  the 
public  pamphlet. 

Prior  to  the  general  election  the  executive  committee  or  managing  of- 
ficers of  any  political  party  or  organization  may  file  with  the  Secretary 
of  State  portrait  cuts  of  its  candidates  and  typewritten  statements  and 
arguments  for  the  success  of  its  principles  and  the  election  of  its  candi- 
dates, and  opposing  or  attacking  the  principles  and  candidates  of  all  other 
parties.  This  same  privilege  applies  to  independent  candidates.  These 
statements  and  arguments  are  printed  in  a  pamphlet  and  mailed  to  the 
registered  voters  of  the  state  not  later  than  the  tenth  day  before  the 
general  election. 

Each  party  is  limited  to  twenty-four  pages,  and  each  independent  can- 
didate to  two  pages,  each  page  in  this  pamphlet  being  charged  for  at 
the  rate  of  $50  per  page.  In  the  campaign  preceding  the  general  election 
each  candidate  is  limited  in  campaign  expenditures  to  i  o  per  cent  of  one 
year's  compensation. 

For  the  purposes  of  this  act  the  contribution,  expenditure,  or  liability  of 
a  descendant,  ascendant,  brother,  sister,  uncle,  aunt,  nephew,  niece,  wife, 
partner,  employer,  employee,  or  fellow  official  or  fellow  employee  of  a 
corporation  is  deemed  to  be  that  of  the  candidate  himself.  Any  person 
not  a  candidate  spending  more  than  $50  in  a  campaign  must  file  an 
itemized  account  of  his  expenditures  in  the  office  of  the  Secretary  of 
State  or  the  county  clerk,  and  give  a  copy  of  the  account  to  the  candidate 
for  whom  or  against  whom  the  money  was  spent. 

Legitimate  Use  of  Money  within  Limit 

While  the  corrupt-practices  act  limits  the  candidate  to  the  expenditure 
of  15  per  cent  of  one  year's  salary  in  his  primary  campaign  and  10  per 
cent  of  a  year's  salary  in  the  general  campaign,  in  addition  to  what  he 
pays  for  space  in  the  publicity  pamphlet,  yet  the  law  does  not  prohibit 
any  legitimate  use  of  money  within  this  limitation.  The  act  makes  it  pos- 
sible for  a  man  of  moderate  means  to  be  a  candidate  upon  an  eciuality 
with  a  man  of  wealth. 

Let  us  take  a  concrete  example  as  a  means  of  illustrating  the  opera- 
tion of  Oregon's  corrupt-practices  act.  The  salary  of  the  governor  is 
$5000  a  year.  A  candidate  for  the  nomination  for  governor  may  take 
a  maximum  of  four  pages  in  the  publicity  pamphlet,  and  thus,  at  a  cost 


THE  LEGISLATURE  1 05 

of  $400,  be  able  to  reach  every  registered  voter  of  his  party  in  the  entire 
state.  In  addition  to  that  $400  he  may  spend  $750,  or  15  per  cent  of  one 
year's  salary,  in  any  other  manner  he  may  choose,  not  in  violation  of  the 
corrupt-practices  act.  A  candidate  may  purchase  space  in  the  advertising 
columns  of  a  newspaper,  but  in  order  that  this  paid  advertising  shall  not  be 
mistaken  for  news,  the  law  requires  that  all  paid  articles  be  marked  as  such. 

The  law  expressly  provides  that  none  of  its  provisions  shall  be  con- 
strued as  relating  to  the  rendering  of  services  by  speakers,  writers,  pub- 
lishers, or  others  for  which  no  compensation  is  asked  or  given  ;  nor  to 
prohibit  expenditure  by  committees  of  political  parties  or  organizations 
for  public  speakers,  music,  halls,  lights,  literature,  advertising,  office  rent, 
printing,  postage,  clerk  hire,  challengers  or  watchers  at  the  polls,  travel- 
ing expenses,  telegraphing  or  telephoning,  or  the  making  of  poll  lists. 

The  successful  nominee  in  the  primary  may  spend  in  his  general  cam- 
paign 10  per  cent  of  one  year's  salary,  this  expenditure,  in  the  case  of 
a  candidate  for  governor,  being  $500.  In  addition  to  this  10  per  cent  Of 
a  year's  salary  he  may  contribute  toward  the  payment  for  his  party's 
statement  in  the  publicity  pamphlet  to  be  mailed  by  the  Secretary  of  State 
to  every  registered  voter.  In  the  publicity  pamphlet  for  the  general  cam- 
paign each  party  may  use  not  to  exceed  twenty-four  pages,  at  $50  per 
page,  making  the  total  cost  to  the  party  committee  |;i2oo,  or  about 
$100  for  each  candidate. 

The  candidate  is  therefore  limited  to  an  expenditure  of  $600  in  his 
general  campaign,  only  $100  of  which  is  necessary  in  order  to  enable  him 
to  reach  every  registered  voter.  He  could  reach  every  registered  voter 
in  his  party  in  the  primary  campaign  for  $400.  Under  no  other  system 
could  a  candidate  reach  all  the  voters  in  two  campaigns  at  a  total  cost 
of  $500. 

Improper  Acts  Prohibited 

The  Oregon  corrupt-practices  act  encourages  and  aids  publicity,  but 
prohibits  the  excessive  or  improper  use  of  money  or  other  agencies  for 
the  subversion  of  clean  elections.  Among  the  acts  which  are  prohibited 
I  may  mention  these  : 

Promises  of  appointments  in  return  for  political  support. 

Solicitation  or  acceptance  of  campaign  contributions  from  or  payment 
of  contributions  by  persons  holding  appointive  positions. 

Publication  or  distribution  of  anonymous  letters  or  circulars  regarding 
candidates  or  measures  before  the  people. 

Sale  of  editorial  support  or  the  publication  of  paid  political  advertising 
v/ithout  marking  it  "  paid  advertising." 

Use  of  carriages  in  conveying  voters  to  the  polls. 

Active  electioneering  or  soliciting  votes  on  election  day. 

Campaign  contributions  by  quasi-public  or  certain  other  important 
classes  of  corporations  generally  affected  by  legislation. 


I06  AMERICAN   STATE  GOVERNMENT 

Intimidation  or  coercion  of  voters  in  any  manner. 

Soliciting  candidates  to  subscribe  to  religious,  charitable,  public,  and 
semipublic  enterprises ;  but  this  does  not  prohibit  regular  payments  to 
any  organization  of  which  the  candidate  has  been  a  member,  or  to  which 
he  has  been  a  contributor  for  more  than  six  months  before  his  candidacy. 

Contribution  of  funds  in  the  name  of  any  other  than  the  person  fur- 
nishing the  money. 

Treating  by  candidates  as  a  means  of  winning  favor. 

Payment  or  promise  to  reward  another  for  the  purpose  of  inducing 
him  to  become  or  refrain  from  becoming  or  cease  being  a  candidate,  or 
solicitation  of  such  consideration. 

Betting  on  an  election  by  a  candidate,  or  betting  on  an  election  by  any 
other  person,  with  intent  to  influence  the  result. 

Attempting  to  vote  in  the  name  of  another  person,  living,  dead,  or 
fictitious. 

Publicity  of  Campaign  Expenditures 

There  is  no  interference  with  such  legitimate  acts  as  tend  to  secure 
full  publicity  and  free  expression  of  opinion.  Personal  and  political  liberty 
is  in  no  way  infringed  upon,  the  only  purpose  being  to  prohibit  the  ex- 
cessive use  of  money,  promises  of  appointment,  or  deception  and  fraud. 

The  corrupt-practices  act  requires  that  every  candidate  shall  file  an 
itemized  statement  of  his  campaign  expenditures  within  fifteen  days  after 
the  primary  election,  including  in  such  statement  not  only  all  amounts 
expended,  but  all  debts  incurred  or  unfulfilled  promises  made. 

Every  political  committee  must  have  a  treasurer,  and  cause  him  to  keep 
a  detailed  account  of  its  receipts,  payments,  and  liabilities.  Any  com- 
mittee or  agent  or  representative  of  a  candidate  must  file  an  itemized 
statement  of  receipts  and  expenditures  within  ten  days  after  the  election. 
The  books  of  account  of  any  treasurer  of  any  political  party,  committee, 
or  organization  during  an  election  campaign  shall  be  open  at  all  reason- 
able office  hours  to  the  inspection  of  the  treasurer  and  chairman  of  any 
opposing  political  party  or  organization  for  the  same  electoral  district. 
Failure  to  file  statements  as  required  by  law  is  punishable  by  fine. 

The  candidate  violating  any  section  of  the  corrupt-practices  act  forfeits 
his  right  to  the  office.  Any  other  person  violating  any  section  of  this  act 
is  punished  by  imprisonment  of  not  more  than  one  year  in  the  county  jail 
or  a  fine  of  not  more  than  $5000,  or  both.  The  candidate  is  also  subject 
to  the  same  penalties. 

The  Recall 

The  final  step  in  the  establishment  of  popular  government  in  Oregon 
was  the  adoption  of  the  recall  amendment  to  the  constitution,  which  was 
adopted  in  1908  by  a  vote  of  5>S,_^8i  to  31,002.  Under  this  amendment 
any  public  officer  may  be  recalled  by  the  filing  of  a  petition  signed  by 


THE  LEGISLATURE 


107 


25  per  cent  of  the  number  of  electors  who  voted  in  his  district  in  the 
preceding  election.  The  petition  must  set  forth  the  reasons  for  the  re- 
call, and  if  the  officer  does  not  resign  within  five  days  after  the  petition 
is  filed,  a  special  election  must  be  ordered  to  be  held  within  twenty  days 
to  determine  whether  the  people  will  recall  such  officer.  On  the  ballot 
at  such  election  the  reasons  for  demanding  the  recall  of  said  officer  may 
be  set  forth  in  not  more  than  two  hundred  words.  His  justification  of  his 
course  in  office  may  be  set  forth  in  a  like  number  of  words.  He  retains  his 
office  until  the  results  of  the  special  election  have  been  officially  declared. 
No  petition  can  be  circulated  against  any  officer  until  he  has  held  office 
six  months,  except  that  in  the  case  of  a  member  of  the  state  legislature  it 
may  be  filed  at  any  time  after  five  days  from  the  beginning  of  the  first 
session  after  his  election.  At  the  special  election  the  candidate  receiving 
the  highest  number  of  votes  is  declared  elected.  The  special  election  is 
held  at  public  expense,  but  a  second  recall  petition  cannot  be  filed  against  an 
officer  unless  the  petitioners  first  pay  the  entire  expense  of  the  first  recall 
election. 

The  Best  System  of  Popular  Government 

Mr.  President,  I  reiterate  that  Oregon  has  evolved  the  best  system  of 
popular  government  that  exists  in  the  world  to-day. 

The  Australian  ballot  assures  the  honesty  of  elections. 

The  registration  law  guards  the  integrity  of  the  privilege  of  American 
citizenship,  —  participation  in  government. 

The  direct  primary  absolutely  insures  popular  selection  of  all  candi- 
dates and  establishes  the  responsibility  of  the  public  servant  to  the  elec- 
torate and  not  to  any  political  boss  or  special  interest. 

The  initiative  and  referendum  is  the  keystone  of  the  arch  of  popular 
government,  for  by  means  of  this  the  people  may  accomplish  such  other 
reforms  as  they  desire.  The  initiative  develops  the  electorate  because  it 
encourages  study  of  principles  and  policies  of  government,  and  affords 
the  originator  of  new  ideas  in  government  an  opportunity  to  secure  pop- 
ular judgment  upon  his  measures  if  8  per  cent  of  the  voters  of  his  state 
deem  the  same  worthy  of  submission  to  popular  vote.  The  referendum 
prevents  misuse  of  the  power  temporarily  centralized  in  the  legislature. 

The  corrupt-practices  act  is  necessary  as  a  complement  to  the  initiative 
and  referendum  and  the  direct  primary',  for  without  the  corrupt-practices 
act  these  other  features  of  popular  government  could  be  abused.  As  I 
have  fully  explained,  the  publicity  pamphlet  provided  for  by  the  corrupt- 
practices  act  affords  all  candidates  for  nomination  or  election  equal  means 
of  presenting  before  the  voter  their  views  upon  public  questions,  and  pro- 
tects the  honest  candidate  against  the  misuse  of  money  in  political  cam- 
paigns. Under  the  operation  of  this  law  popular  verdicts  will  be  based 
upon  ideas,  not  money ;  argument,  not  abuse ;  principles,  not  boss  or 
machine  dictation. 


Io8  AMERICAN  STATE  GOVERNMENT 

The  recall,  to  my  mind,  is  rather  an  admonitory  or  precautionary 
measure,  the  existence  of  which  will  prevent  the  necessity  for  its  use. 
At  rare  intervals  there  may  be  occasion  for  exercise  of  the  recall  against 
municipal  or  county  officers,  but  I  believe  the  fact  of  its  existence  will 
prevent  need  for  its  use  against  the  higher  officials.  It  is,  however,  an 
essential  feature  of  a  complete  system  of  popular  government. 

Absolute  Government  by  the  People 

Under  the  machine  and  political-boss  system  the  confidence  of  sincere 
partisans  is  often  betrayed  by  recreant  leaders  in  political  contests  and  by 
public  servants  who  recognize  the  irresponsible  machine  instead  of  the 
electorate  as  the  source  of  power  to  which  they  are  responsible.  If  the 
enforcement  of  the  Oregon  laws  will  right  these  wrongs,  then  they  were 
conceived  in  wisdom  and  born  in  justice  to  the  people,  in  justice  to  the 
public  servant,  and  in  justice  to  the  partisan. 

Plainly  stated,  the  aim  and  purpose  of  the  laws  is  to  destroy  the  irre- 
sponsible political  machine  and  to  put  all  elective  offices  in  the  state  in 
direct  touch  with  the  people  as  the  real  source  of  authority ;  in  short,  to 
give  direct  and  full  force  to  the  ballot  of  every  individual  elector  in  Oregon 
and  to  eliminate  dominance  of  corporate  and  corrupt  influences  in  the 
administration  of  public  affairs.  The  Oregon  laws  mark  the  course  that 
must  be  pursued  before  the  wrongful  use  of  corporate  power  can  be  de- 
throned, the  people  restored  to  power,  and  lasting  reform  secured.  They 
insure  absolute  government  by  the  people. 

THE  INITIATIVE,  THE  REFERENDUM,  AND  THE  RECALL^ 

By  Margaret  A.  Schaffner 

To  make  representative  government  more  representative  is  the  prob- 
lem of  to-day.  The  gradual  process  of  social  evolution  has  changed  the 
industrial  basis  upon  which  our  political  institutions  rest,  and  the  increased 
complexity  of  our  social  organization  has  made  the  expression  of  the  pop- 
ular will  more  difficult.  As  readjustment  to  changing  conditions  is  the 
requisite  for  any  advancing  type  of  life,  so  political  progress  becomes 
impossible  unless  new  agencies  are  developed,  to  be  retained  or  discarded 
as  experience  may  warrant. 

Among  the  agencies  for  political  expression  few  have  made  more 
remarkable  progress  in  the  history  of  recent  legislation  than  the  initiative, 
the  referendum,  .-uid  the  recall.  State-wide  refercndums  for  the  adoption 
of  stale  constitutional,  and  local  refercndums  for  local  affairs,  are  familiar 
institutions  in  the  United  States,  but  it  is  only  within  recent  years  that 
our  states  have  begun  to  adopt  the  initiative  and  the  referendum  for  state 
legislation. 

1  From  Amcrkiut  Political  Science  Review,  1907-1908. 


THE  LEGISLATURE  109 

Constitutional  Amendments  for  the  Initiative  and  the 

Referendum 

Prior  to  1907  a  group  of  states,  including  South  Dakota  (1898),  Utah 
(1900),  Oregon  (1902),  Nevada  (1904),  and  Montana  (1906),  had 
adopted  constitutional  provisions.^  Some  of  these  amendments  were 
imperfectly  drawn,  and  lack  of  experience  as  to  the  practical  workings  of 
direct  legislation  in  certain  cases  led  to  the  omission  of  essential  provi- 
sions for  securing  the  results  which  the  amendments  contemplated.  The 
amendment  for  Utah  was  not  made  self-executing,  and  three  successive 
legislatures  have  refused  to  provide  for  its  operation.  The  amendment 
for  Nevada  provides  only  for  the  referendum,  and  the  details  of  the  plan 
are  so  imperfectly  drawn  that  substantial  results  from  the  law  are  as  yet 
"  the  substance  of  things  hoped  for  "  rather  than  the  evidence  of  things 
seen.  Among  the  earlier  amendments  the  South  Dakota  provision 
adopted  in  1898,  and  fortified  by  effective  legislation  in  the  following 
year,  has  undoubtedly  served  as  the  best  model  for  subsequent  attempts 
to  secure  direct  legislation  in  this  country.  This  amendment  is  quite 
closely  modeled  after  the  plan  so  long  in  successful  operation  in  Switzer- 
land, and  although  an  undue  use  of  the  emergency  clause  has  somewhat 
weakened  the  eflficiency  of  the  system  in  South  Dakota,^  that  state  has 
secured  fairly  satisfactory  results  from  the  operation  of  her  law.  The 
lack  of  provision  for  bringing  initiative  measures  before  the  legislature 
and  for  securing  competing  bills  has  been  one  of  the  serious  defects  of 
the  Oregon  law.  Oregon  voters  have  too  often  been  placed  at  the  dis- 
advantage of  choosing  between  the  acts  of  groups  of  extremists,  instead 
of  having  a  choice  of  measures  resulting  from  the  deliberative  attempts 
of  men  to  find  some  common  basis  for  legislative  action.  Prior  to  the 
legislation  of  1907  the  Oregon  system  also  suffered  from  the  lack  of 
publicity  for  proposed  measures.  This  defect  is  largely  overcome  by  the 
new  law  (1907,  Chapter  226),  which  makes  elaborate  provision  for  the 
publication  and  distribution  of  initiative  bills  and  of  arguments  to  be  sub- 
mitted to  the  voters.  However,  the  lack  of  opportunity  for  bringing  pro- 
posed measures  before  the  legislature,  and  the  impossibility  of  securing 
the  submission  of  competing  bills,  lessens  the  guarantee  for  careful  con- 
sideration of  proposed  legislation  and  diminishes  the  voter's  opportunity 
for  discrimination  and  choice.  The  Montana  amendment  of  1906  intro- 
duced an  innovation  by  requiring  that  two  fifths  of  the  whole  number  of 
counties  of  the  state  must  each  furnish  the  required  per  cent  of  signers 
for  the  initiative  and  referendum  petitions.  This  provision  will  probably 
make  it  more  difficult  to  secure  the  required  number  of  signatures,  and 

1  South  Dakota  Constitution  (amended  1898),  Article  3,  Section  i.  Utah,  Constitution 
(amended  1900),  Article  6,  Sections  i  and  22.  Oregon,  Constitution  (amended  1902),  Article 
4,  Section  i.  Nevada,  Constitution  (amended  1904),  Article  19,  Sections  i  and  2.  Montana, 
Constitution  (amended  1906),  Article  5,  Section  i. 

2  See  State  ex  rel.  Lavin,  et  al.  I's.  Bacon,  et  al.  1901,  14  S.  D.  394. 


no  AMERICAN   STATE  GOVERNMENT 

the  practical  outcome  of  the  plan  will  be  awaited  with  interest  by  both 
advocates  and  opponents  of  direct  legislation. 

Although  the  amendments  secured  prior  to  1907  show  many  defects, 
they  have  pointed  the  way  for  securing  direct  legislation  in  state  affairs, 
and  the  experience  gained  through  the  practical  application  of  the  several 
laws  is  being  utilized  to  establish  more  effective  systems. 

During  the  legislative  sessions  of  1907  the  campaign  for  the  initiative 
and  referendum  was  carried  on  with  unabated  fervor.  Measures  provid- 
ing for  some  form  of  direct  legislation  were  introduced  in  some  twenty 
states,  and  the  results  secured  during  the  legislative  year  have  made  the 
question  one  of  political  importance  throughout  the  country.  The  legis- 
latures of  Maine,  Missouri,  and  North  Dakota  provided  for  the  submis- 
sion of  constitutional  amendments.  The  amendments  for  Maine  and 
Missouri  will  be  voted  upon  in  1908,  while  in  North  Dakota  the  pro- 
posed amendment  must  also  be  passed  by  the  next  legislature  before 
being  submitted  to  the  people.  The  provisions  ^  for  the  initiative  and 
referendum  in  the  constitution  recently  adopted  by  the  people  of  Okla- 
homa are  of  special  interest.  This  constitution  is  the  first  in  our  country 
to  embody  the  principles  of  direct  state  legislation  in  the  original  draft, 
all  of  our  other  constitutional  provisions  on  this  subject  having  been 
secured  through  amendment. 

Briefly  outlined,  the  Oklahoma  constitution  contains  the  following  pro- 
visions for  direct  state  legislation :  The  initiative  and  the  referendum 
apply  both  to  constitutional  and  to  statutory  law.  Legislative  measures 
may  be  proposed  by  8  per  cent,  and  amendments  to  the  constitution 
by  15  per  cent  of  the  legal  voters.  The  total  number  of  votes  cast  at 
the  last  general  election  for  the  state  office  receiving  the  highest  number 
of  votes  is  made  the  basis  on  which  the  required  number  of  signatures 
is  to  be  counted.  A  referendum  may  be  ordered  by  5  per  cent  of  the 
legal  voters,  but  laws  necessary  for  the  immediate  preservation  of  the 
public  peace,  health,  or  safety  are  exempt  from  the  referendum  provi- 
sions. Referendum  petitions  are  to  be  filed  with  the  Secretary  of  State  not 
more  than  ninety  days  after  the  final  adjournment  of  the  legislature  which 
passed  the  bill  on  which  a  referendum  is  demanded.  All  elections  on 
measures  referred  to  the  people  are  to  be  had  at  the  next  general  elec- 
tion held  throughout  the  state,  except  when  the  legislature  or  the  governor 
.shall  order  a  special  election  for  the  express  purpose  of  making  such 
reference.  Initiative  measures  require  a  majority  of  the  votes  cast  at  the 
election,  while  only  a  majority  of  the  votes  cast  on  a  referred  measure 
are  necessary  to  give  it  effect.  The  referendum  may  be  demanded  by 
the  peo|)le  against  one  or  more  items,  .sections,  or  parts  of  any  act  of  the 
legislature.  The  veto  power  of  the  governor  does  not  extend  to  meas- 
ures voted  on  by  the  people.    Any  measure  rejected  by  the  people  through 

1  (')klahoma,  Constitution,  1907,  Article  5,  Sections  1-8 ;  Article  18,  Sections  4a-5b ;  and 
Article  24,  .Section  3. 


THE  LEGISLATURE  III 

the  powers  of  the  initiative  and  referendum  cannot  again  be  proposed 
by  initiative  within  three  years  thereafter  by  less  than  2  5  per  cent  of  the 
legal  voters. 

The  proposed  amendment  for  North  Dakota  is  modeled  more  closely 
after  the  Swiss  law,  and  has  many  points  of  advantage  over  the  provi- 
sions in  the  Oklahoma  constitution,  which  follows  the  Oregon  amendment 
in  a  number  of  particulars.  The  North  Dakota  provision  for  bringing 
the  initiative  measures  before  the  legislature  and  for  securing  the  sub- 
mission of  competing  bills  is  an  especially  strong  feature.  Under  the 
North  Dakota  plan  8  per  cent  of  the  legal  voters  may  propose  a  meas- 
ure by  initiative  petition.  Every  such  petition  must  include  the  full  text 
of  the  measure  proposed,  and  must  be  filed  with  the  Secretary  of  State 
not  less  than  thirty  days  before  any  regula.r  legislative  session,  and  he 
is  required  to  transmit  the  same  to  the  legislature  as  soon  as  it  con- 
venes. Initiative  measures  take  precedence  over  all  measures  in  the 
legislative  assembly  except  appropriation  bills,  and  are  either  to  be  enacted 
or  rejected  without  change  or  amendment  within  forty  days.  Any  initi- 
ative measure  enacted  by  the  legislature  is  subject  to  referendum  petition, 
or  it  may  be  referred  by  the  legislature  to  the  people  for  approval  or 
rejection.  If  it  is  rejected,  or  no  action  is  taken  upon  it  by  the  legislature 
within  forty  days,  the  Secretary  of  State  is  to  submit  it  to  the  people  for 
approval  or  rejection  at  the  next  ensuing  regular  general  election.  The 
legislature  may  reject  any  measure  proposed  by  initiative  petition,  and 
propose  a  different  one  to  accomplish  the  same  purpose,  and  in  any  such 
event  both  measures  are  to  be  submitted  by  the  Secretary  of  State  to  the 
people  for  approval  or  rejection  at  the  next  election.  If  conflicting 
measures  submitted  to  the  people  at  the  same  election  are  approved  by  a 
majority  of  the  votes  severally  cast  for  and  against  the  same,  the  one 
receiving  the  highest  number  of  affirmative  votes  becomes  valid  and  the 
other  is  thereby  rejected. 

The  North  Dakota  plan  also  makes  provision  against  an  undue  use 
of  the  emergency  clause  by  the  legislature.  When  it  is  necessary  for  the 
immediate  preservation  of  the  public  peace,  health,  or  safety  that  a  law 
shall  become  effective  without  delay,  such  necessity  and  the  facts  creat- 
ing the  same  must  be  stated  in  one  section  of  the  bill.  If,  upon  aye-and- 
no  vote  in  each  House,  two  thirds  of  all  the  members  elected  to  each 
House  vote  on  a  separate  roll  call  in  favor  of  the  law  going  into  instant 
operation,  it  becomes  operative  upon  approval  of  the  governor.  The  refer- 
endum may  be  ordered  (except  as  to  laws  necessary  for  the  immediate 
preservation  of  the  public  peace,  health,  or  safety)  as  to  any  measure, 
or  any  parts,  items,  or  sections  of  any  measure,  passed  by  the  legisla- 
ture, either  by  a  petition  signed  by  5  per  cent  of  the  legal  voters,  or 
by  the  legislature  by  a  majority  vote.  The  filing  of  referendum  petition 
against  one  or  more  items,  sections,  or  parts  of  an  act  is  not  to  delay  the 
remainder  of  that  act  from  becoming  operative.    Referendum  petitions 


112  AMERICAN  STATE  GOVERNMENT 

against  measures  passed  by  the  legislature  are  to  be  filed  with  the  Secre- 
tary of  State  not  more  than  ninety  days  after  the  final  adjournment  of  the 
legislative  session.  The  veto  power  of  the  government  does  not  extend 
to  measures  referred  to  the  people.  All  elections  on  measures  referred 
to  the  people  of  the  state  are  to  be  had  at  biennial  regular  general  elec- 
tions except  as  provision  may  be  made  by  law  for  a  special  election  or 
elections.  Any  measure  referred  to  the  people  is  to  take  effect  when  it 
is  approved  by  a  majority  of  the  votes  cast  thereon,  and  is  to  be  in  force 
from  the  date  of  .the  official  declaration  of  the  vote.  The  whole  number 
of  votes  cast  for  justices  of  the  supreme  court  at  the  regular  election  last 
preceding  the  filing  of  any  petition  for  the  initiative  or  for  the  referendum 
is  made  the  basis  on  which  the  number  of  legal  voters  necessary  to  sign 
such  petition  is  to  be  counted.  The  amendment  is  self-executing,  but 
legislation  may  be  enacted  especially  to  facilitate  its  operation. 

The  amendment  ^  submitted  in  Maine  is  similar  in  its  most  important 
points  to  that  of  South  Dakota.  Provision  is  made  against  an  undue  use 
of  the  emergency  clause,  and  also  for  securing  the  submission  of  com- 
peting bills  from  the  legislature.  A  peculiarity  of  the  Maine  law  is  that 
it  provides  for  a  definite  number  instead  of  a  percentage  of  signatures  to 
propose  or  refer  measures;  thus  it  requires  1 2,000  signatures  for  initiative 
and  10,000  for  referendum  petitions.  This  is  probably  due  to  the  fact 
that  the  legislature  of  Maine  considered  the  population  of  the  state  a 
fairly  fixed  element.  The  amendment  applies  to  statutory  law,  but  it  does 
not  provide  for  changes  in  the  constitution  through  initiative  petitions. 

The  proposed  amendment^  for  Missouri  provides  that  laws  and  amend- 
ments to  the  constitution  may  be  proposed  by  8  per  cent  and  the  ref- 
erendum may  be  invoked  by  5  per  cent  of  the  legal  voters.  There  is 
also  a  provision  that  the  number  of  signatures  required  for  initiative  and 
referendum  petitions  must  be  secured  in  each  of  at  least  two  thirds  of  the 
congressional  districts  in  the  state.  The  amendment  does  not  apply  to 
laws  necessary  for  the  immediate  preservation  of  the  public  peace,  health, 
or  safety,  nor  to  laws  making  appropriations  for  the  current  expenses  of 
the  state  government,  for  the  maintenance  of  the  state  institutions,  and 
for  the  support  of  the  ])ul)lic  schools.  The  lack  of  provision  for  bringing 
proposed  measures  before  the  legislature  and  for  securing  the  submission 
of  competing  bills  must  be  considered  a  weak  point  in  the  Missouri  plan. 

The  Advisory  Initiative  and  Advisory  Referendum  for 

State  Measures 

The  difficulty  of  securing  constitutional  amendments  for  the  initiative 
and  the  referendum  have  led  to  the  development  of  other  methods  for 
securing  at  least  partial  systems  of  direct  slate  legiskuion. 

J  Maine,  Resolves,  1907,  Chapter  121.  2  Missouri,  Laws,  1907,  pp.  452-453. 


THE  LEGISLATURE 


113 


The  Illinois  public-opinion  system  (Laws,  1901,  p.  198),  adopted  in  1 901, 
provides  for  an  expression  of  opinion  by  electors  on  questions  of  public 
policy  at  any  general  or  special  election.  Under  this  law  the  submission 
of  any  question  for  an  expression  of  public  opinion  may  be  secured  on 
a  written  petition  signed  by  25  per  cent  of  the  registered  voters  of  any 
incorporated  town,  village,  city,  township,  county,  or  school  district, 
or  by  10  per  cent  of  the  registered  voters  of  the  state.  The  petition 
must  be  filed  with  the  proper  election  officers,  in  each  case,  not  less 
than  sixty  days  before  the  date  of  the  election  at  which  the  question  is  to 
be  considered,  and  not  more  than  three  propositions  may  be  submitted 
at  the  same  election.  This  law  is  a  step  toward  the  advisory  initiative, 
but  it  does  not  go  quite  so  far,  as  the  voter  merely  expresses  an  opinion 
instead  of  being  able  to  instruct  his  representatives  by  direct  ballot.  The 
public-opinion  system  has  been  used  in  Illinois  on  a  number  of  state  ques- 
tions, but  as  the  candidates  for  the  legislature  were  not  pledged  to  obey 
the  wishes  of  their  constituents,  these  expressions  of  public  opinion  have 
not  been  very  effective  in  securing  the  legislation  desired. 

A  vigorous  campaign  for  the  advisory  initiative  and  the  advisor)^  refer- 
endum was  conducted  in  a  number  of  states  during  the  past  legislative 
year.  The  question  excited  special  interest  in  Massachusetts,  where  a 
pledged  majority  of  the  legislature  for  the  advisory  initiative  broke  their 
pledges  by  refusing  to  pass  the  proposed  bill.  Other  states  had  similar 
experiences  with  representatives  pledged  to  vote  for  the  advisory  system 
of  direct  legislation,  although  the  plan  continues  to  receive  the  approval 
of  public  men  of  all  parties.  In  his  last  message  to  the  Minnesota  legisla- 
ture Governor  Johnson  called  attention  to  the  merits  of  this  system  and 
declared  himself  to  be  "  firmly  of  the  opinion  that  such  legislation  is 
desirable." 

The  Texas  system  (Laws,  1905,  Chapter  11,  Section  140)  provides 
for  the  advisory  initiative  within  the  parties  at  primary  elections.  The 
law  applies  "  whenever  delegates  are  to  be  selected  by  any  political 
party  to  any  state  or  county  convention,  or  candidates  are  instructed  for, 
or  nominated."  Under  this  law  10  per  cent  of  the  voters  in  any  political 
party  may  propose  policies  and  candidates  and  secure  a  direct  party 
vote  thereon.  Petitions  are  to  be  filed  with  the  chairman  of  the  county 
or  the  precinct  executive  committee  at  least  five  days  before  the  tickets 
are  to  be  printed,  and  the  chairman  may  require  a  sworn  statement  that 
the  names  of  the  applicants  are  genuine.  The  number  of  signatures  nec- 
essary for  a  petition  is  to  be  determined  by  the  votes  cast  for  the  party 
nominee  for  governor  at  the  preceding  election.  It  is  made  the  duty  of 
the  chairman  to  submit  any  proposition  for  which  a  petition  is  filed,  and 
the  delegates  selected  at  that  time  are  to  be  considered  instructed  for 
whichever  proposition  a  majority  of  the  votes  are  cast.  Provision  is  also 
made  that  all  additional  expenses  of  printing  any  proposition  on  the 
official  primary  ballot  is  to  be  paid  for  by  the  parties  requesting  the  same. 


114  AMERICAN  STATE  GOVERNMENT 

Advocates  of  direct  legislation  have  recently  been  carrying  on  a  cam- 
paign for  the  advisory  initiative  and  advisory  referendum  for  national 
affairs.  One  hundred  and  ten  members  of  the  present  House  of  Repre- 
sentatives are  pledged  to  vote  for  the  establishment  of  the  advisory  ref- 
erendum for  acts  of  Congress  or  bills  passed  by  either  House,  and  for  the 
establishment  of  the  advisory  initiative  for  the  following  topics  :  civil  serv- 
ice ;  immigration ;  interstate  commerce,  including  parcels  post ;  trial  by 
jury  or  any  modification  of  the  \slw  of  injunction;  the  eight-hour  day  in 
government-contract  work ;  the  initiative  and  referendum  ;  the  election  of 
United  States  senators  by  the  people ;  and  proportional  representation. 

The  Recall 

The  recall  is  another  political  institution,  developed  in  Switzerland,  which 
is  being  established  in  this  country  in  an  increasing  number  of  munici- 
palities. At  the  present  time  it  is  in  existence  in  a  large  number  of  cities  ^ 
in  California  and  in  Washington.  It  is  also  to  be  found  in  certain  cities 
in  Idaho,  Iowa,  Michigan,  and  Texas.  The  validity  of  the  recall  has  been 
sustained  in  a  number  of  court  decisions.^  Recently  the  California  state 
appellate  court  of  the  second  district  held  that  the  act  of  the  city  council 
in  accepting  the  petition  for  the  recall  of  a  councilman  was  merely  minis- 
terial, and  that  when  a  petition  bears  the  proper  number  of  names  of 
electors,  as  shown  by  the  clerk's  certificate,  no  discretion  remains  with 
the  council,  but  it  is  its  duty  to  call  an  election.^ 

A  typical  example  of  the  recall  for  city  officials  is  found  in  the  new 
law  (1907,  Chapter  48)  of  Iowa,  which  provides  for  the  adoption  of  the 
commission  system  of  government  by  cities  having  a  population  of  25,000 
or  over.  Section  18  provides  that  the  holder  of  any  elective  office  may 
be  removed  at  any  time  by  the  electors  qualified  to  vote  for  a  successor 

1  Among  the  California  cities  which  have  secured  the  recall  as  a  charter  right  are  I-os 
Angeles  (Cal.  Laws,  1903,  Chapter  6)  ;  .San  Diego  (Cal.  Laws,  1905,  Chapter  11)  ;  -San  Ber- 
nardino (Cal.  Laws,  1905,  Chapter  15)  ;  Pasadena  (Cal.  Laws,  1905,  Chapter  20)  ;  Fresno 
(Cal.  Laws,  1905,  Chapter  23)  ;  .Santa  Monica  (Cal.  Laws,  1907,  Chapter  6)  ;  Alameda  (Cal. 
I.aws,  1907,  Chapter  7)  ;  Long  Beach  (Cal.  Laws,  1907,  Chapter  15)  ;  Riverside  (Cal.  Laws, 
1907,  Chapter  25). 

In  Washington,  Seattle  secured  the  recall  in  1006,  and  in  1007  the  .Spokane  city  council 
adopted  an  ordinance  for  the  recall  to  be  submitteci  to  the  people  as  a  proposed  amendment 
to  the  charter.  Under  Chapter  241,  Laws,  1907,  provision  is  made  for  the  recall  in  all  cities 
of  the  second  class.    'Jhis  includes  cities  having  a  population  between  1500  and  10,000. 

P'or  Idaho,  see  Lewistf)n  charter  (Laws,  1907,  p.  349). 

I)cs  Moines  adopted  the  recall  under  the  Iowa  Law  (1907,  Chapter  48)  providing  for  the 
commission  system  of  government. 

In  April,  1906,  flrand  Rapids,  Mich.,  adopted  tin-  recall  under  the  provisions  of  her  new 
charter  (Mich.  Laws,  1905,  No.  593),  establishing  the  initiative  and  referendum  for  charter 
amendments. 

2  Davenport  ts.  City  of  Los  Angeles,  et  nl.  190^,  146  Cal.  508;  (iood  t'.v.  Common  Coun- 
cil of  City  of  .San  Diego,  1907,  Chapter  (jo,  p.  44  (Cal.  App.). 

Also  compare  Rex  ts.  Richardsf)n,  1738,  1  Burr,  5  17,  in  which  it  was  held  that  "  the  power 
to  remove  a  corporate  officer  from  his  oftire  for  reasonable  and  just  cause  is  one  of  the  com- 
mon-law incidents  of  all  corpoiations." 

8  Good  vs.  Common  Council  of  the  City  of  San  Diego,  1907,  Chapter  90,  p.  44. 


THE  LEGISLATURE  1 15 

of  the  incumbent.  The  procedure  for  removal  is  as  follows :  A  peti- 
tion signed  by  electors  entitled  to  vote  for  a  successor  to  the  incumbent 
sought  to  be  removed,  equal  in  number  to  at  least  25  per  cent  of  the 
entire  vote  for  all  candidates  for  the  office  of  mayor  cast  at  the  last  pre- 
ceding general  municipal  election,  demanding  an  election  of  a  successor 
of  the  person  sought  to  be  removed,  is  to  be  filed  with  the  city  clerk. 
This  petition  is  to  contain  a  general  statement  of  the  grounds  for  which 
the  removal  is  sought.  The  signatures  to  the  petition  need  not  all  be 
appended  to  one  paper,  but  each  signer  must  add  to  his  signature  his 
place  of  residence,  giving  the  street  and  number.  One  of  the  signers  of 
each  paper  is  to  make  oath  before  an  officer  competent  to  administer 
oaths,  that  the  statements  therein  made  are  true  as  he  believes,  and  that 
each  signature  to  the  paper  appended  is  the  genuine  signature  of  the 
person  whose  name  it  purports  to  be.  Within  ten  days  from  the  date  of 
filing  the  petition  the  city  clerk  is  to  examine  the  voters'  register  to  ascer- 
tain whether  or  not  the  petition  is  signed  by  the  requisite  number  of 
qualified  electors.  If  necessary,  the  council  is  to  allow  him  extra  help  for 
that  purpose,  and  he  is  to  attach  his  certificate  to  the  petition,  showing 
the  result  of  his  examination.  If  by  the  clerk's  certificate  the  petition  is 
shown  to  be  insufficient,  it  may  be  amended  within  ten  days  from  the  date 
of  the  certificate.  Within  ten  days  after  such  amendment  the  clerk  is  to 
make  like  examination  of  the  amended  petition,  and  if  his  certificate  shows 
the  same  to  be  insufficient,  it  is  to  be  returned  to  the  person  filing  the 
same ;  without  prejudice,  however,  to  the  filing  of  a  new  petition  to  the 
same  effect.  If  the  petition  is  deemed  to  be  sufficient,  the  clerk  is  to  sub- 
mit the  same  to  the  council  without  delay ;  and  if  it  is  found  to  be  suffi- 
cient, the  council  is  to  order  and  fix  a  date  for  holding  the  election,  not 
less  than  thirty  days  or  more  than  forty  days  from  the  date  of  the 
clerk's  certificate  to  the  council  that  a  sufficient  petition  is  filed. 

The  council  is  to  provide  for  publication  of  notice  and  all  arrange- 
ments for  holding  the  election,  which  is  to  be  conducted  and  returned 
in  all  respects  as  other  city  elections.  The  successor  of  any  officer  so 
removed  is  to  hold  office  during  the  unexpired  term  of  his  predecessor. 
Any  person  sought  to  be  removed  may  be  a  candidate  to  succeed  him- 
self, and  unless  he  requests  otherwise  in  writing,  the  clerk  is  required  to 
place  his  name  on  the  official  ballot  without  nomination.  In  any  removal 
election  the  candidate  receiving  the  highest  number  of  votes  is  to  be 
declared  elected.  Unless  the  incumbent  receives  the  highest  number  of 
votes  at  the  election,  he  is  deemed  to  be  removed  from  the  office  upon 
the  qualification  of  his  successor.  In  case  the  party  who  receives  the 
highest  number  of  votes  fails  to  qualify,  within  ten  days  after  receiving 
notification  of  election,  the  office  is  deemed  vacant. 

The  new  charter  for  Lewiston,  Idaho  (Laws,  1907,  p.  349),  has  simi- 
lar provisions  for  the  recall.  In  addition  it  safeguards  the  city  from  pos- 
sible misuse  of  the  law  by  providing  that  no  petition  for  removal  is  to 


Il6  AMERICAN  STATE  GOVERNMENT 

be  filed  until  the  person  has  been  in  office  at  least  ninety  days,  and  that 
no  person  is  to  be  required  to  stand  for  reelection  more  than  once  dur- 
ing the  term  for  which  he  was  elected. 

Judicial  Interpretation  of  Direct  Legislation 

The  validity  of  legislation  for  the  initiative  and  referendum  has  been 
sustained  in  a  number  of  recent  court  decisions.  The  former  contention 
that  the  use  of  direct  legislation  substituted  a  pure  democracy  for  a 
republican  form  of  government  no  longer  receives  serious  consideration. 

In  a  case  decided  by  the  supreme  court  of  California  in  1906,  the 
court  declared  ^  that  the  provision  of  the  federal  Constitution  (Article  4, 
Section  4)  declaring  that  the  United  States  shall  guarantee  to  every 
state  a  republican  form  of  government,  is  not  violated  by  the  initiative 
provision  of  a  city  charter^  authorizing  direct  legislation  as  to  strictly  local 
affairs  by  the  citizens,  in  case  the  council  refuses  to  enact  the  same.  In 
an  earlier  decision^  the  supreme  court  of  Oregon  similarly  held  that  the 
initiative  and  referendum  amendment  to  the  Oregon  constitution  did  not 
abolish  or  destroy  the  republican  form  of  government,  or  substitute 
another  in  its  place.  The  court  declared:  "The  representative  character 
of  the  government  still  remains.  The  people  have  simply  reserved  to 
themselves  a  larger  share  of  legislative  power." 

Madison  defined  a  representative  government  to  be  "  a  government 
which  derives  all  its  powers  directly  or  indirectly  from  the  great  body  of 
the  people,  and  is  administered  by  persons  holding  their  offices  during 
pleasure,  for  a  given  period,  or  during  good  behavior."^ 

Recent  court  decisions  seem  to  be  returning  to  this  inclusive  idea  of 
representative  government.  On  the  basis  of  this  broader  interpretation, 
direct  legislation  may  prove  to  become  one  method  of  making  represent- 
ative government  more  representative. 


THE  EXTENDED  SPHERE  OF  LEGISLATIVE  ACTION"^ 
By  Justice  Simeon  E.  Baldwin 

Contrast,  if  you  will,  social  regulation  by  the  state  as  it  bore  upon  the 
individual  in  our  earlier  days  and  as  it  bears  upon  him  now. 

The  manufacturer  finds  his  field  of  activity  contracting.  In  one  state 
he  cannot  distill  or  brew  ;  in  another  he  cannot  make  a  cigarette.® 

1  In  re  Pfahlcr,  1906,  Chapter  88,  p.  270. 

2  Charter  of  Los  AriKeles,  Cal.  Laws,  1903,  Chapter  6. 

8  Kafldcrly  ts.  Portland,  1903,  44  Or.  118.  *  The  Federalist,  p.  302. 

6  From  an  address  before  the  Cjeorgia  Bar  Association,  1909.   Reproduced  by  permission. 
8  Iowa  Code,  sect.  5006;  Act  of  February  28,  1905,  of  Indiana;  State  ts,  Lowry,  166 
Ind.  372  ;  77  Northeastern,  728. 


THE  LEGISLATURE  1 17 

Formerly,  if  an  employer  preferred  to  have  none  in  his  service  who 
did  not  share  his  political  opinions,  he  could  discharge  such  as  voted 
against  the  candidates  of  his  choice  at  public  elections.  Now  the  state 
may  be  found  punishing  him  for  so  doing  by  fine  or  imprisonment. 

Once  every  official  was  free  to  take  an  active  part  in  political  cam- 
paigns.   Now  it  would  be  a  cause  of  removal  in  the  case  of  very  many. 

Once  every  man's  house  was  his  castle,  subject  to  the  right  of  the 
state  to  take  it  from  him  for  the  strict  purposes  of  government,  on  mak- 
ing him  just  compensation.  Now  the  state  may  thus  seize  it  for  a  pleas- 
ure ground,  a  band  stand,  a  memorial  site,  a  hospital,  a  college,  a  free 
library.-' 

Once  his  farm  was  his  own,  to  plant  and  till  as  he  might  please.  Now 
some  public  official  may  invade  his  orchard,  uproot  his  trees,  and  leave 
him  without  remedy,  if  the  state  deems  it  necessary  or  expedient  for  the 
public  welfare.'^ 

The  owner  of  a  wood  lot  was  formerly  free  to  cut  it  when  he  pleased 
and  as  he  pleased. 

He  may  now  be  ordered  by  the  legislature  to  refrain  from  cutting  the 
whole  or  part  of  the  natural  growth  for  a  period  of  years,  and  left  to 
find  his  compensation  only  in  the  fact  that  this  is  deemed  to  be  for  the 
greatest  good  of  the  greatest  number.^ 

If  one  owns  land  from  which  comes  oil  or  natural  gas,  he  must,  on 
the  one  hand,  guard  against  waste,  and  on  the  other,  refrain  from  increas- 
ing the  natural  flow  to  the  prejudice  of  his  neighbors.*  Similar  statutes 
have  been  upheld  in  reference  to  the  use  of  water  from  artesian  wells. ^ 

The  riparian  proprietor  on  streams  not  navigable  has  long  been  com- 
pelled in  many  states  to  submit  to  the  flooding  of  his  land  by  others, 
to  create  water  power  for  them  to  put  to  milling  or  manufacturing 
purposes. 

He  now  finds  his  fishing  rights  curtailed  or  perhaps  denied  for  years, 
in  order  to  secure  replenishing  the  stream  with  more  fish  for  others 
to  catch  and  eat.® 

A  grazier  or  butcher  could  formerly  dress  his  meat  products  for  such 
purposes  as  he  saw  fit.  Now,  if  he  should  use  his  tallow  to  make  a  cheap 
substitute  for  butter,  he  might  find  himself  under  arrest  as  a  criminal, 
and  liable  to  a  sentence  to  imprisonment.^ 

Once  a  man  could  educate  his  children  as  he  pleased,  or  not  at  all. 
Now  the  state  may  compel  him  to  educate  them  in  a  certain  wa)-. 

In  obedience  to  its  commands  he  sends  them  to  a  public  school,  and 

1  United  States  rs.  Gettysburg  Electric  Railway  Co.,  160  U.  S.  668. 

2  State  7's.  Main,  69  Conn.  23,  36,  37  ;  Atlantic,  80 ;  36  L.  R.  A.  673;  61  Am.  St.  30. 

3  Opinion  of  the  Justices,  —  Maine,  — ;  69  Atlantic,  626. 

4  Ohio  Oil  Co.  :s.  Indiana,  177  U.  S.  190;  Manufacturers  (ias  Co.  i.f.  Indiana  Gas  Co, 
155  Ind.  467  ;  50  L.  R.  A.  768. 

5  Ex  parte  Elam,  152  Cal.  — ;  91  Pac.  811. 

6  Freund  on  the  Police  Power,  sect.  419.         »  Powell  I's.  Pennsylvania,  127  U.  S.  67S. 


Il8  AMERICAN   STATE  GOVERNMENT 

the  state  may  refuse  to  receive  them  unless  they  are  submitted  to  vac- 
cination, although  he  may  regard  it  as  both  unnecessary  and  dangerous.^ 

He  may  think  that  he  provides  them  at  home  with  food  sufficient  for 
their  wants,  but  if  a  school  committee  think  otherwise,  he  may  be  forced 
to  pay  for  other  meals  furnished  by  them  and  charged  to  him.^ 

Formerly  a  private  school  could  be  open  to  all  whom  the  master 
thought  fit  to  receive.  Now  it  may  be  made  a  criminal  offense  to  admit 
children  of  different  colors.* 

Once,  if  a  man  contemplated  marriage,  no  considerations  of  personal 
health  need  debar  him  from  a  free  choice.  Now  the  state  may  forbid 
him,  under  heavy  penalties,  from  many-ing  an  epileptic  or  one  of 
feeble  mind.^ 

Here  one  may  remark  a  reversion  to  the  ways  of  thought  in  ancient 
society.  There  the  individual  was  merged  in  the  family.  His  good  was 
not  thought  of,  but  the  good  of  the  head  of  his  house  and  of  all  the 
members  of  that  house. 

Not  dissimilar  in  origin  is  the  public  school. 

The  family  formerly  was  its  own  educator.  Then  came  the  church, 
acting  through  parochial  schools  and  monasteries.  Last  appears  the 
state,  declaring  that  the  liberty  of  the  father  may  be  justly  restrained  in 
the  interest  of  the  child,  and  also  in  the  interest  of  the  public. 

The  man  should  be  accorded  more  freedom  of  will  than  the  child,  and 
yet  that  freedom,  as  respects  the  child,  may  fairly  be  curtailed  in  the 
child's  interest. 

He  may  be  justly  compelled  to  send  his  children  to  school.  He  may 
be  justly  compelled  not  to  send  them  to  the  factory. 

Compulsory  education  is  the  sole  salvation  of  modem  government. 
"  Educate  your  masters  "  was  the  only  cry  that  could  wake  slow-moving 
England  to  her  duty. 

Why  is  the  German  a  leader  in  the  domain  of  knowledge,  of  industry, 
of  militar)'  power  ?  Because,  for  one  thing,  Prussia  led  Europe  in  forc- 
ing her  people  to  send  their  children  to  school.  In  the  German  army 
there  was,  in  1904,  but  one  man  in  every  twenty-five  hundred  who  could 
not  read  and  write.  In  the  French  army,  in  1906  and  again  in  1907,  there 
were  eighty-three  in  every  twenty-five  hundred  who  could  not. 

The  distribution  of  one's  estate  by  will,  with  few  limitations,  was,  up 
to  recent  times,  left  mainly  to  his  discretion,  provided  he  were  not  grossly 
unfair  to  his  next  of  kin  ;  and  their  title  to  succeed,  if  there  were  no  will, 
was  commonly  regarded  as  in  the  nature  of  a  vested  right.    Now  the 

1  Morris  vs.  Columbus,  102  Ga.  792;  42  I-.  R.  A.  175.  As  by  Kentucky  Act  of  March 
22,  1904. 

2  An  act  of  Parliament  to  this  effect  was  passed  in  England  in  1906,  Chapter  57,  and  the 
courts  support  it. 

3  Bcrca  College  jj.  Commonwealth,  29  Ky.  Law,  284  ;  94  Southwestern,  62  5 ;  .S.C.  2 1 1  U.S. 
*  2  Howard  on  Matrimonial  Institutions,  400,  477,  480;  Gould  rs.  Gould,  78  Conn.  242; 

61  Atlantic,  604  ;  2  L.  K.A.  (N.S.)  531. 


THE  LEGISLATURE 


119 


state  demands  a  share  for  itself,  and  one  that  is  to  be  increased  pro- 
gressively with  the  magnitude  of  the  inheritance. 

The  artificial  person  has  lost  more  even  than  the  natural  person. 
Its  field  of  action  is  continually  being  circumscribed ;  its  manner  of 
action  continually  subjected  to  new  limitations. 

It  may  have  large  interests  that  would  be  injuriously  affected  by  legis- 
lation favored  by  a  political  party  on  a  certain  subject,  say  the  tariff. 
Formerly  it  could  cast  its  influence  against  such  legislation,  contributing 
to  the  expenses  of  the  opposing  party.  Now  such  action  would  consti- 
tute a  crime. 

But  it  is  not  so  with  all  artificial  persons. 

Once,  if  a  malicious  prosecution  were  brought  against  a  man,  whoever 
brought  it  could  be  held  answerable  in  court  for  the  resulting  damages. 
A  corporation  had  no  more  immunity  from  such  an  action  than  the  hum- 
blest individual.  The  courts  looked  through  its  intangible  form  to  the 
real  men  who  composed  it  and  held  it  liable  for  what  they  did.^ 

But  by  the  Trades  Dispute  Act,  passed  by  the  parliament  of  England  in 
1906,  no  action  for  a  malicious  prosecution  nor  any  other  act  of  private 
wrong  can  be  maintained  against  any  trade-union  whatever. 

In  a  recent  judgment, '■^  dismissing  such  a  case,  the  judge  (Mr.  Justice 
Darling)  observed  that  the  object  of  the  act  was  to  alter  the  law  on  that 
subject  as  laid  down  in  the  Taff  Vale  case,*  "  and  to  remove  trade- 
unions  from  the  humiliating  position  of  being  on  a  level  with  other  lawful 
associations  of  his  Majesty's  subjects ;  adding  that  trade-unions  are  now 
super  legem ^  as  the  medieval  emperor  was  super  gram7naticam.'" 

The  individual  laborer  has  also  been  often  treated  by  our  legislators 
like  a  ward  incapable  of  protecting  his  own  interests.  The  number  of 
hours  for  which  he  can  agree  to  work  in  a  day  have  been  cut  down,  and 
his  liberty  of  contract  in  many  other  directions  circumscribed.* 

On  the  other  hand,  the  power  of  the  state  has  often  been  exerted  to 
depress  that  of  organized  labor. 

It  has  regulated  and,  under  some  circumstances,  forbidden  strikes.  It 
has  forbidden  boycotts.  It  has  forbidden  (though  it  knew  it  not)  com- 
binations of  labor  in  different  states  in  restraint  of  commerce  between 
those  states. 

But  there  is  no  time  to  multiply  references  to  a  kind  of  legislation 
with  which  every  man  before  me  is  familiar,  and  in  shaping  which  many 
of  whom  have  had  a  part. 

It  is  the  age  of  collectivism.  The  functions  of  the  state  multiply.  Its 
circle  of  activities  expands,  and  the  circle  of  activities  around  each  indi- 
vidual is  correspondingly  reduced. 

1  Goodspeed  vs.  East  Haddam  Bank,  22  Conn.  530. 

2  Barry  vs.  Amalgamated  Society  of  Railway  Servants,  Lawjotimal,  March  2,  1908,  p.  174. 
8  L.  R.  Appeal  Cases  of  1901,  426,  Chapter  47. 

4  See  N.  Y.  Labor  Law  of  1906;  People  W.Williams  Engineering  Co., —  N.  Y. — ;  85  North- 
eastern, 1070. 


I20  AMERICAN   STATE  GOVERNMENT 

The  hand  of  government  has  always  been  heavier  in  countries  without 
a  written  constitution  than  in  those  which  possess  one. 

We  have  not  quite  got  back  to  the  practice  of  Egypt  in  the  times  of 
her  pyramid  builders.  Then  the  hours  of  washing,  of  walking,  of  all  the 
amusements  and  occupations  of  everybody's  day,  of  the  quality  and  even 
the  quantity  of  his  food,  were  precisely  regulated  by  the  law  of  the  land. 
But  we  have  embarked  upon  a  stream  which  flows  that  way.  We  are 
part  of  a  great  world  fleet  sailing  in  the  same  direction,  the  ships  of 
state  of  Australia  and  even  of  England  leading  in  the  advance. 

LEGISLATIVE  APPORTIONMENT  ^ 

By  Elihu  Root 

The  next  question  is  as  to  the  particular  scheme  of  apportionment  that 
is  to  be  presented  to  this  convention.  Is  that  fair  ?  At  the  basis  of  that, 
sir,  lies  the  question  which  must  be  determined  upon  before  we  can  agree 
upon  any  apportionment.  The  question  has  been  raised  somewhat  in 
the  attacks  upon  this  bill,  but  not  debated  fully  or  broadly,  whether  in 
dividing  the  state  into  Senate  and  assembly  districts,  we  are  to  have 
regard  to  county  lines.  Having  determined  that  we  are  to  have  an 
apportionment,  you  must  next  determine  the  question  whether  you  will 
regard  county  lines  or  will  throw  them  aside.  It  does  not  seem  to  me 
that  it  is  necessary  or  profitable  to  debate  that  very  long.  I  do  not  con- 
sider that  the  gentlemen  who  have  attacked  this  bill  seriously  propose 
that  county  lines  should  be  thrown  away.  It  certainly  would  require  long 
and  serious  consideration  before  any  convention  would  undertake  to 
abolish  so  time-honored  an  institution,  and  one  with  which  all  the  habits, 
associations,  and  traditions  of  the  people  are  so  closely  associated.  I 
should  hesitate  very  long,  sir,  before  1  should  vote  to  destroy  the  bound- 
aries or  existence  of  my  old  county  of  Oneida.  I  believe  that  every 
gentleman  upon  the  floor  of  this  convention,  whether  he  lives  in  the 
great  cities  or  still  remains  under  the  rooftree  of  his  fathers  in  the  rural 
counties, — -that  any  gentleman  who  has  ever  passed  his  childhood  in  one 
of  the  rural  counties  of  the  state  would  be  exceedingly  unwilling  to  de- 
stroy its  existence  and  blot  it  out.  The  habits  of  our  people,  their 
traditions,  their  best  and  noblest  sentiments,  are  embodied  in  the  pride 
which  they  feel  in  the  counties  of  their  birth  and  of  their  life.  These 
counties  originally  meant  something.  'I'hey  still  mean  something.  De- 
stroy them,  and,  in  order  that  there  shall  be  political  divisions  at  all,  in 
order  that  the  state  may  be  districted  for  senators  and  assemblymen, 
you  create  new  lines,  new  divisions,  in  which  people  arc  to  create  new 
friendships,  which  any  future  convention  may  destroy.  You  destroy 
an  institution  of  immense  and  immeasural:)le  value  and  create  another 
'  From  a  speech  in  the  New  York  Constitutional  Convention,  1894. 


THE  LEGISLATURE  12  i 

which,  in  the  future,  can  be  destroyed  by  some  future  convention.  No, 
sir,  I  am  satisfied,  and  I  believe  all  the  people  on  this  side  of  the  con- 
vention are  satisfied  that  the  people  of  the  state  do  not  wish  to  destroy 
their  county  lines  in  the  distribution  of  senators  and  assemblymen. 

Well,  sir,  if  you  wish  to  preserve  county  lines,  how  are  you  to  distrib- 
ute senators  and  assemblymen  among  these  counties  .''  And  the  next 
question  you  meet  is.  What  shall  be  the  number  of  senators  and  as- 
semblymen ?  Shall  we  keep  the  thirty-two  and  one  hundred  and  twenty- 
eight  that  we  now  have,  or  shall  we  go  to  another  number  ?  Now,  as  I 
understand  the  proportion  which  underlies  the  establishment  of  the  num- 
bers of  fifty  and  one  hundred  and  fifty  in  place  of  the  thirty-two  and 
one  hundred  and  twenty-eight,  it  is  in  its  main  feature  this :  the  conven- 
tion of  1846  divided  the  state  into  Senate  districts  with  express  and 
special  reference  to  the  convenience  of  the  people,  the  relation  of  the 
counties  in  the  district,  the  ability  of  the  representative  in  the  Senate  to 
become  familiar  and  remain  familiar  with  the  varied  interests  and  wants 
of  the  people  and  with  the  people  themselves.  If  a  district  is  too  large, 
if  it  be  of  a  shoe-string  character,  stretching  over  a  long,  extensive 
territory,  if  it  be  divided  by  natural  obstacles,  if  it  be  like  the  present 
apportionment  where  one  district  comes  down  into  the  middle  of  another, 
so  that  you  have  to  go  around  Robin  Hood's  barn  to  get  into  it,  the 
representative  that  comes  from  the  divided  district  will  be  familiar  with 
the  wants  and  needs  of  the  people  in  only  his  part  of  the  district.  The 
constitution  of  1846  divided  the  state  into  Senate  districts  and  fixed  the 
number  of  the  Senate  at  thirty-two,  so  that  each  senator  could  readily 
represent  his  district.  Since  that  time  increase  in  population  has  occurred 
in  the  great  cities,  and  the  effect  of  reapportionment,  with  the  number 
remaining  at  thirty-two  and  giving  new  senators  to  the  great  cities,  is  to 
take  away  senators  from  the  country,  so  that  the  country  districts  have 
been  continually  enlarging  until  they  have  reached  a  point  where  a 
senator  cannot  properly  represent  the  whole  people  of  his  district.  The 
main  object  of  fixing  fifty  as  the  number  of  senators  is  to  bring  the 
senatorial  districts,  widely  extending  as  they  are  in  the  country,  back 
substantially  where  they  were  with  thirty-two  under  the  apportionment 
of  1846.  So  that  the  evil  arising  from  the  continual  enlargement  of  the 
districts,  because  of  the  continual  sending  of  new  senators  to  the  cities, 
will  be  removed  by  the  increase  of  number. 

Now,  Mr.  Chairman,  when  we  are  considering  what  number  a  legis- 
lative body  should  contain,  what  is  the  proper  process  of  reaching  a  fair 
conclusion  ?  Is  it  to  start,  as  some  of  my  friends,  under  the  influence  of 
their  prepossession  and  prejudgment,  have  done,  looking  first  at  what  the 
political  effects  will  be  ?  Is  that  the  proper  way  to  consider  matters  in 
this  body,  —  to  see  how  it  is  going  to  affect  this  or  that  party,  this  or  that 
candidate  ?  I  think  not,  sir.  There  are  two  questions  which  should,  by  a 
fair  and  honest  consideration,  be  determined,  and  one  is  that  to  which  I 


122  AMERICAN  STATE  GOVERNMENT 

have  just  referred, —  the  question  as  to  what  extent  of  district  can  properly 
be  represented  by  a  single  representative,  —  and  the  other  is,  What  is  an 
effective  working  size  for  the  body  which  is  to  be  constituted. 

Now,  I  am  free  to  say,  for  the  reason  that  I  have  just  mentioned  as 
to  the  representation  of  individual  districts,  and  upon  the  teaching  of 
common  experience,  the  number  of  fifty  which  is  fixed  in  this  bill  as  the 
number  of  the  Senate,  meets  both  of  these  requirements.  It  puts  the 
senatorial  districts  each  in  such  a  position  that  they  can  be  well  repre- 
sented each  one  by  a  senator,  and  it  puts  the  Senate  at  such  a  point  that 
it  can  properly  perform  the  peculiar  functions  imposed  upon  it  by  our 
system  of  government,  —  functions  calling  for  great  consideration  and 
requiring  in  their  deliberation  a  small  body  of  men. 

In  the  assembly  the  question  rises  to  some  extent;  if  you  regard 
counties  and  are  not  to  destroy  them,  each  county  must  have  its  repre- 
sentative, and  with  one  hundred  and  twenty-eight  as  the  number  of  the 
assembly,  the  giving  of  a  representative  to  each  of  the  small  counties 
produced  a  very  great  advantage  on  the  part  of  those  counties  and  a 
comparative  disadvantage  on  the  part  of  the  large  counties  and  of  the 
great  cities.  The  increase  of  number  from  one  hundred  and  twenty-eight 
to  one  hundred  and  fifty  is  a  concession.  Now,  Mr.  Chairman,  I  don't 
want  any  misunderstanding -about  this,  and  I  put  it  to  the  gentlemen 
who  have  attacked  this  bill  whether  it  is  not  true  that  an  increase  of  the 
number  of  the  assembly  from  one  hundred  and  twent)'-eight  to  one 
hundred  and  fifty  is  a  concession  by  the  small  counties  to  the  large  coun- 
ties in  the  city;  whether  Putnam  County,  with  its  thirteen  thousand 
population,  is  not  getting  less  advantage  over  the  rest  of  the  state  with 
one  out  of  one  hundred  and  fifty,  than  she  now  has  with  one  out  of  one 
hundred  and  twenty-eight ;  whether  every  one  of  the  small  counties  that 
has  a  single  member  is  not  surrendering  an  advantage  which  each  now 
has  with  one  hundred  and  twenty-eight?  That  surrender  on  the  part  of  the 
small  counties,  which  are,  perhaps,  securing  advantage  by  the  redistrict- 
ing  of  the  state  for  Senate  districts,  securing  closer  contact  with  their 
member  of  the  Senate,  —  that  surrender  is  pushed  just  so  far  in  order  to 
maintain  a  representative  body  which  is  small  enough  to  do  effective 
work  in  the  legislature  of  the  state. 

Now,  Mr.  Chairman,  somebody,  in  order  to  successfully  dispute  this 
bill,  is  bound  to  give  us  some  reasons  why  these  numbers  ought  not 
to  be  adopted,  —  some  reason  why  different  numbers  will  make  a  better 
working  Senate  and  assembly  and  secure  better  representation  in  the 
Senate  and  assembly  districts.  You  cannot  overthrow  the  bill  by  merely 
crying  politics. 

Now,  as  to  the  actual  distribution  of  counties,  the  actual  formation  of 
the  Senate  and  assembly  districts  outside  of  the  city  of  New  York,  I 
will  say  nothing  bccau.se  I  am  not  familiar  with  the  subject.  Those  who 
have  spoken  and  others  who  are  to  speak,  I  presume,  arc  much  more 


THE  LEGISLATURE 


123 


competent  than  I  am,  or  ever  hope  to  be,  on  that  subject.  As  to  the 
division  of  the  senatorial  districts  in  the  city  of  New  York,  it  was  made 
upon  what  I  suppose  to  be  the  true,  indisputable,  and  fundamental  prin- 
ciples of  apportionment,  and  that  is,  following  the  lines  of  homogeneous 
population  and  the  lines  of  easy  communication.  The  city  of  New  York, 
as  every  one  in  this  convention  knows,  is  one  in  which  communication  is 
up  and  down,  north  and  south.  The  people  do  their  business  and  travel 
along  the  avenues  which  run  north  and  south  —  Avenues  A  and  B,  First 
Avenue,  Second  Avenue,  Third  Avenue,  Fourth  Avenue,  Fifth  Avenue, 
Sixth  Avenue,  Seventh  and  Eighth  Avenues.  Communication  across  from 
river  to  river  is  slight.  People  will  live  a  whole  lifetime  upon  Manhattan 
Island  without  ever  getting  across  from  river  to  river.  Lines  of  business 
run  north  and  south,  the  people  who  know  each  other,  the  people  who 
are  engaged  in  business  with  each  other,  the  people  whose  public  senti- 
ments are  the  same,  they  are  arranged  up  and  down  the  island ;  and  we 
have  endeavored,  and  I  think  successfully,  to  lay  out  the  senatorial  dis- 
tricts in  such  a  way  that  the  people  from  any  part  will  connect  with  any 
other  part  most  readily  ;  and  that  each  district  will  contain,  to  the  greatest 
possible  extent,  the  most  perfectly  homogeneous  people,  so  that  these 
twelve  districts  will  come  as  near  being  real  districts  as  possible,  just  as 
twelve  different  counties  are  real  districts.  Now,  gentlemen,  say  that  the 
result  of  this  is,  that  there  are  two  Republican  districts  in  the  city.  That 
results,  Mr.  Chairman,  from  the  fact  that  where  more  than  one  third  of  the 
voters  are  Republican,  you  cannot  lay  out  the  land  in  twelve  senatorial  dis- 
tricts without  having  at  least  two  that  are  Republican,  unless  you  violate 
every  proper  rule  of  apportionment.  If  you  follow  right  rules  in  a  city 
where  one  third  of  the  voters  are  Republicans,  at  least  one  sixth  of  the  as- 
semblymen will  be  Republican,  and  nothing  but  deprivation  of  right  will 
prevent  it.  That  intentional  deprivation  of  right  the  people  of  New  York 
City  now  suffer  under,  and  one  reason  why  we  ought  now  and  here  to 
adopt  a  new  apportionment  as  a  part  of  this  constitution  is  to  overthrow 
a  right  and  set  up  a  wrong  for  these  people,  [x^pplause.]  Talk  about 
lack  of  representation  !  Mr.  Chairman,  there  are  a  hundred  thousand 
voters  with  their  families  in  that  city ;  more  than  one  hundred  thousand 
men  who  voted  for  Harrison  in  the  last  election,  with  their  families,  call 
them  five  to  one ;  there  are  a  half  million  of  people  without  one  repre- 
sentative in  the  Senate  of  this  state,  and  with  the  districts  of  that  island 
so  cut  up  by  intention  that  they  can  never  have  a  single  representative 
in  the  Senate  of  the  state ;  and  yet  the  gentleman  says  to  us,  "  It  is 
partisan  for  you  to  make  any  apportionment  at  all." 

Mr.  Chairman,  I  have  something  to  say  also  about  some  of  the  rules 
that  are  laid  down  in  this  amendment.  The  objections  which  are  made 
seem  to  be  chiefly  to  the  rule  relating  to  ratio.  That  is  the  rule  which 
imposes  upon  the  large  cities  a  somewhat  larger  ratio  than  that  which  is 
applied  to  the  large  Congress,  and  the  rule  that  provides  that  no  large 


124  AMERICAN  STATE  GOVERNMENT 

city,  no  county  having  a  specified  number  of  senators,  shall  have  an 
additional  senator,  except  upon  a  full  ratio.  I  am  trying  to  state  fairly  the 
two  things  which  I  find  the  gentlemen  have  attacked  in  that  respect. 
Now  these  two  provisions  are  attacked  upon  the  theory  that  population, 
and  population  only,  is  the  basis  upon  which  an  apportionment  shall  be 
made,  and  that  any  provision  which  departs  to  any  extent  from  the  rule 
of  population  is  wrong  in  principle  and  some  sinister  motive  could  be 
found  for  it.  I  take  issue  with  that,  sir.  I  assert  that  population  is  not 
the  only  rule  ;  that  the  object  to  be  attained  is  true  representation.  There 
is  to  be  combined  with  population  as  the  basis  of  representation  also  the 
question  of  territory  and  the  question  of  separate  and  individual  interest. 
I  say,  in  the  second  place,  that  the  comparison  is  not  between  a  single 
ratio  of  population  in  a  small  county  and  a  single  ratio  of  population  in 
a  large  city;  the  question  is  not  whether  38,606  men  in  the  country 
should  have  greater  effect  given  to  their  votes  than  38,606  men  in  the 
city.  The  question  is  whether  thirty  separate  counties  of  38,606  each, 
scattered  over  the  country,  are  to  be  compared  upon  the  basis  of  absolute 
numerical  equality  with  one  center  of  thirty  times  38,606  in  one  city, 
with  all  the  multiplication  of  power  that  comes  from  representing  a 
single  interest,  standing  together  on  all  measures  against  a  scattered  and 
disunited  representation  from  thirty  widely  separated  single  centers  of 
38,606.  Thirty  men  from  one  place  owing  their  allegiance  to  political 
organization,  representing  one  community  voting  together,  acting  to- 
gether solidly ;  why  ?  They  are  worth  double  the  scattered  elements  of 
power  coming  from  hundreds  of  miles  apart. 

Mr.  Chairman,  when  we  adjourned  this  afternoon  I  was  discussing 
the  question  of  ratios  and  of  the  two  provisions  which  discriminated  in 
favor  of  the  country  and  against  the  cities,  by  fixing  a  smaller  ratio  for 
the  country  counties  than  is  fixed  for  the  larger  counties  and  the  cities, 
and  providing  that  no  city  having  more  than  a  specified  number  of  sena- 
tors shall  have  another  senator,  except  upon  a  full  ratio.  I  had  stated 
that  there  were  two  reasons  for  not  applying  a  strict  rule  of  representa- 
tion according  to  absolute  population  to  the  whole  state,  and  tliat  those 
two  reasons  were,  first,  that  territorial  extension,  variety  and  separation 
of  interests,  upon  the  one  hand,  required  a  rc]Drcsentation  which  was  not 
necessary  for  the  other,  when  there  was  a  condensation  in  the  great  cen- 
ters of  population  ;  and,  in  the  second  place,  that  tlie  great  increase  of 
effective  force  which  comes  from  the  election  of  a  large  number  of  repre- 
sentatives of  one  city,  — ■  representatives  who  represent  not,  in  fact,  their 
separate  districts,  but  the  whole  city,  representatives  who  arc  responsi- 
ble to  the  same  public  opinion,  and,  in  fact,  represent  but  one  combined 
interest  of  the  citizens  of  that  city,  —  the  great  accumulation  of  power 
created  by  that  combination  so  far  outweighed  the  effective  power  of 
a  great  number  of  scattered   representatives  of  widely  divided  centers 


THE  LEGISLATURE  I  25 

of  population,  small  centers  of  population,  that  a  difference  in  the 
ratio,  such  as  is  preferred  in  this  amendment,  goes  but  a  small  ways 
toward  equalization. 

Now,  Mr.  Chairman,  let  me  say  a  word  upon  this  last  proposition.    In 
the  city  of  New  York  there  are  thirty  assembly  districts.    Under  this 
proposed  measure  there  are  to  be  thirty-five.    I  would  venture  to  say  that 
a  majority  of  the  people  of  the  city  of  New  York  cannot  tell  the  bound- 
aries of  I  o  per  cent  of  the  assembly  districts  of  that  city.    I  will  venture  to 
say  more, —  that  not  more  than  one  third  of  the  people  of  the  city  can  tell 
what  assembly  district  they  live  in.    I  will  undertake  to  say  that  not  10 
per  cent  of  the  people  of  the  city  of  New  York  can  tell  what  election  dis- 
trict they  live  in.    The  boundary  lines  are  so  far  statutory  and  matters 
of  words ;  the  distinctions  between  the  artificial  divisions  of  assembly 
districts  and  of  senatorial  districts,  and  aldermanic  districts  and  civil-jus- 
tice districts,  and  election  districts,  are  so  shadowy,  in  fact  they  are  so 
largely  a  matter  of  statute  and  so  little  a  matter  resting  in  real  distinction 
of  population,  that  people  do  not  know  anything  about  them  until  they 
come  to  study  their  tickets  just  before  they  go  to  the  polls,  or  look  into 
the  newspaper  to  see  where  they  are  to  vote.    A  resident  in  one  of  our 
great  cities  —  it  is  so  in  New  York  and  it  is  getting  to  be  so  in  Brooklyn 
and  it  will  soon  be  so  in  Buffalo  —  has  not  for  his  neighbor  the  man  who 
lives  next  door ;  the  chances  are  he  does  not  know  who  he  is  or  what 
his  name  is,  and  would  not  recognize  him  if  he  met  him  in  the  street. 
His  neighbor  is  somebody  who  lives  four  or  five  miles  off,  whom  he 
meets  at  church,  at  a  club,  at  a  directors'  meeting,  or  perhaps  in  a  labor 
organization,  or  in  one  of  the  various  associations  which  make  up  the 
busy  and  complicated  life  of  a  great  city.   Locality  counts  for  nothing  in  a 
great  city.    Every  man  who  is  sent  to  the  legislature  from  a  great  city 
represents  not  this  artificial  territory,  this  territory  artificially  defined  ; 
that  is  but  a  means  of  determining  what  voters  shall  pass  upon  the  ques- 
tion of  whether  he  or  another  man  goes  to  the  legislature.    But  he  repre- 
sents the  whole  city;  every  representative  of  every  part  of  the  city 
represents  the  whole  city,  and  no  special  part  of  it.    The  interests  of  all 
the  thirty  members  from  New  York  will  be  one  interest.    There  is  not 
interest  of  the  fifteenth  district  as  distinguished  from  the  sixteenth,  or 
the  seventeenth,  or  the  eighteenth,  or  the  nineteenth  as  distinguished 
from  the  twentieth,  or  the  twenty-first,  or  twenty-second.    Each  is  for  all ; 
all  are  for  one.    Each  is  responsible  to  one  political  organization  of  the 
city.    Each  is  charged  with  the  duty  of  representing,  and  discharges  the 
duty  of  representing,  or,  too  often,  misrepresenting,  the  whole  interests 
of  the  people  of  the  city.   Now,  sir,  we  are  to  compare  this  compact  body 
of  men,  each  one  of  them  representing  precisely  what  the  others  repre- 
sent, thirty  men  as  it  is  now,  thirty-five  as  it  is  proposed  to  be,  extending 
in  one  solid  phalanx,  to  represent  one  interest, — we  are  to  compare  that 
with  the  representation  of  Putnam  County,  St.  Lawrence  County,  Oneida 


126  AMERICAN   STATE  GOVERNMENT 


County,  Cattaraugus  County,  Monroe  County,  —  gentlemen  representing 
entirely  different  interests  and  responsible  to  entirely  different  constitu- 
encies, with  no  cohesion,  no  common  bond,  except  as  they  may  happen 
to  have  spoken  upon  a  subject  which  comes  before  the  representative 
body.  And  I  submit  that  upon  sound  principles  the  comparison  between 
these  separate  bodies  and  their  representatives  and  this  one  great  con- 
solidated body  is  not,  and  cannot  be,  a  mere  numerical  comparison. 
Carry  this  to  its  logical  conclusions,  if  you  please.  Take  the  view  taken 
by  our  friends  on  the  other  side.  See  the  city  of  New  York  growing 
year  by  year,  adding  Brooklyn  perhaps  to  a  Greater  New  York,  and, 
within  the  allotted  space  of  life  of  the  majority  of  the  members  of  this 
convention,  holding  within  its  limits  a  majority  of  the  people  of  this  state  ; 
she  sends  to  your  legislature  a  majority  of  all  its  members,  responsible 
to  one  political  organization  in  that  one  municipality,  — •  responsible,  if  the 
present  system  of  political  domination  which  now  obtains  in  that  city  is 
continued,  to  one  man  for  their  votes  and  their  actions,  —  and  tell  me 
whether,  for  the  government  of  this  state,  it  is  right  and  just  that  the 
comparison  between  all  the  other  representations  of  this  state,  all  the 
other  counties,  and  all  the  other  cities,  extending  over  half  a  thousand 
miles  from  east  to  west  and  from  the  ocean  to  the  St.  Lawrence  River, 
with  their  varied  interests,  with  their  widely  scattered  centers  of  popula- 
tion, —  whether  the  comparison  between  the  representation  and  this  one 
controlling  power  should  be  solely  on  the  basis  of  population.  If  that 
principle  be  pushed  to  its  logical  conclusion,  every  county,  every  city, 
every  town,  ever)'  village,  ever}'  man  in  the  state  of  New  York  becomes 
subject  to  the  absolute  domination  and  control  of  the  delegation  from 
New  York.  I  for  one,  sir,  New  Yorker  as  I  am,  beholden  for  almost 
thirty  years  of  kind  treatment  to  that  city,  love  too  dearly  the  state  of  my 
birth  and  my  life  to  contemplate  such  a  result  with  equanimity.  And  I 
insist,  sir,  upon  the  principle  which  has  been  adopted  in  a  large  number 
of  the  states  of  this  Union,  in  almost  every  state  which  has  had  to  deal 
with  the  problem  of  a  great  city  within  its  borders,  and  the  relations  of 
that  city  to  an  agricultural  community,  that  the  problem  which  they  have 
had  to  deal  with  shall  be  dealt  with  by  us  upon  the  same  principle ;  that 
the  small  and  widely  scattered  communities,  with  their  feeble  power 
comparatively,  because  of  their  division,  shall,  by  the  distribution  of  rep- 
resentation, be  put  upon  an  equal  footing,  so  far  as  may  be,  with  the 
concentrated  power  of  the  cities.  Otherwise  we  never  can  have  a  truly 
representative  and  a  truly  republican  government. 


THE  LEGISLATURE 


127 


LEGISLATIVE  APPORTIONMENT  IN  CONNECTICUT  ^ 

By  Governor  McLean 

The  constitution  of  the  state  of  Connecticut,  like  those  of  her  sister 
republics,  always  has  been,  is  now,  and  always  will  be  complained  against 
by  good  and  patriotic  men. 

The  state  of  Connecticut  is,  however,  by  the  testimony  of  all  her  loyal 
sons,  as  good  a  state  to  live  in  as  there  is  in  the  Union. 

Many  of  her  blessings  are  due  to  the  wealth  and  variety  of  her  natural 
endowments,  but  many  more  are  due  to  the  wisdom  of  the  fathers  who  laid 
the  foundations  of  her  government  in  the  adamant  of  morality  and  justice. 

For  more  than  two  centuries  the  fundamental  law  of  Connecticut  has 
been  the  admiration  and  inspiration  of  the  representative  republics  of  the 
world.  And  if  the  citizens  of  Connecticut  have  preferred  stability  to 
uncertain  change,  their  choice  has  brought  them  great  prosperity  and  the 
reputation  of  being  a  people  of  steady  habits,  which,  with  God's  help, 
may  they  long  retain. 

Nothing  is  so  destructive  of  credit  and  the  general  well-being  of  society 
as  constant  modification  of  fundamental  law,  and  injustices  in  a  constitu- 
tion offending  theory  only  may  well  be  preferred  to  experimental  attempts 
at  impossible  ideals. 

The  general  plan  of  our  constitution  in  its  protection  against  the  wrong 
kind  of  liberty  is,  in  the  judgment  of  many,  better  than  that  possessed 
by  any  other  state  in  the  Union.  I  do  not  say  that  it  is  perfect.  Perfec- 
tion is  hard  to  find  in  temples  made  with  hands. 

We  are  told  that  a  perfect  form  of  government  is  possible,  and  that  it 
will  be  the  one  that  runs  in  exact  harmony  with  the  immutable  laws  of 
nature.  This  may  be  true,  and  when  discovered,  still  be  unsatisfactory, 
for  some  of  the  best  of  us  will,  I  fear,  always  find  occasion  to  criticize 
natural  regulations. 

On  the  other  hand,  we  need  never  fear  to  remedy  a  manifest  wrong 
in  fundamental  law,  if  that  wrong  clearly  affects  a  majority  of  the  people. 
And  the  minority,  however  dearly  it  may  cherish  the  law  that  causes 
that  wrong,  should  remember  that  the  very  life  of  a  democracy  depends 
upon  the  patriotic  obedience  of  all  to  the  will  of  the  majority.  We  must 
expect  to  amend  our  constitution  for  years,  if  not  for  centuries,  to  come. 
We  should  be  willing  and  even  glad  to  do  so,  when  natural  causes  that 
could  not  be  foreseen  have,  in  the  course  of  time,  rendered  an  amend- 
ment a  plain  duty. 

In  1639,  when  the  state  had  but  three  towns,  each  town  was  given 
four  deputies  to  the  General  Court,  and  it  was  further  provided  in  the 
first  of  written  constitutions  that  whatever  other  towns  should  thereafter 
be  added  to  Connecticut,  "  they  shall  send  so  many  deputies  as  the  court 

1  Extract  from  Governor  McLean's  message  of  1901. 


128  AMERICAN   STATE  GOVERNMENT 

should  judge  meet,  a  reasonable  proportion  to  the  number  of  freemen 
that  are  in  the  said  towns  being." 

It  was  then  the  definite  expressed  purpose  of  the  founders  of  the  state 
to  give  to  each  town  such  number  of  deputies  as  would  be  in  reasonable 
proportion  to  the  number  of  freemen  therein,  and  to  every  town  some 
representation.  It  cannot  be  denied  that  this  apportionment  was  con- 
ser\'ative,  wise,  and  just. 

At  present,  owing  to  a  very  large  increase  in  the  population  of  some 
towns,  and  very  little,  if  any,  in  others,  it  is  theoretically  possible  for  less 
than  20  per  cent  of  the  people  of  Connecticut  to  elect  a  clear  major- 
ity of  both  branches  of  the  general  assembly,  and  so  secure  absolute 
control  of  the  entire  state  government;  and,  as  an  adjunct  to  this  unantici- 
pated departure  from  the  original  intent  of  the  founders,  some  towns 
having  a  population  of  less  than  five  hundred  retain  two  representatives, 
while  others  having  ten  times  that  number  are  entitled  to  but  one. 

Some  of  you  may  be  tempted  to  point  to  the  proposed  increase  in  the 
Senate  as  fully  satisfying  the  spirit  of  the  constitution.  I  cannot  see 
wherein  this  amendment  can  be  soberly  considered  as  a  remedy  for  the 
real  and  growing  injustice  in  the  apportionment  of  the  representation  in 
the  House.  The  Senate  in  name,  purpose,  and  history  is  the  smaller  and 
conservative  body,  and  it  should  in  my  judgment  remain  such. 

There  are  at  present  eighty-seven  towns  having  two  representatives 
and  eighty-one  towns  having  but  one.  If  each  town  is  given  one  repre- 
sentative, and  there  is  added  to  every  town  exceeding  a  certain  popula- 
tion one  representative  for  each  ten  thousand  or  more  of  such  excess, 
you  will  fairly  and  substantially  remove  the  present  injustice  and  still 
retain  the  federal  or  territorial  element  in  the  present  constitution. 

It  is  a  compromise,  but  an  honorable  and  logical  compromise,  in  which 
the  people  gain  much  and  the  towns  save  much  in  retaining  a  privilege 
which  to  them  is  an  education  and  a  dignity  as  dear  and  sacred  as  it  is 
conservative  and  beneficial  to  the  state. 

A  reapportionment  that  would  entirely  deprive  the  smaller  towns  of 
their  individual  representation  would  be  a  radical  and  complete  departure 
from  the  plan  of  the  founders,  and  I  fear  that  any  attempt  to  secure  such 
a  reapportionment  would  be  as  unsuccessful  as  it  would  be  unwise.  Many 
of  us  still  believe  in  the  little  town  republics.  And  whether  they  created 
the  state  or  the  state  created  them,  they  have  lived  together  in  harmony 
and  stood  shoulder  to  shoulder  in  defense  of  each  other  and  the  state  too 
long  to  become  antagonists  now. 

If,  upon  careful  and  unprejudiced  deliberation,  you  become  convinced, 
as  I  am  convinced,  that  a  fair  reapportionment  of  the  representation  in 
the  coordinate  branches  of  the  general  assemljly  is  due  to,  and  greatly 
desired  by,  a  large  majority  of  the  people  of  Connecticut,  the  manner  in 
which  the  constitution  shall  be  altered  to  allow  such  reapportionment  will 
be  of  next  importance. 


THE  LEGISLATURE 


129 


You  will  hear  much  about  the  necessity  of  a  constitutional  convention 
from  many  zealous  and  farseeing  men,  but  I  caution  you  that  in  adopt- 
ing this  plan  you  would  open  the  door  to  guest  and  stranger  alike  and 
throw  the  key  away.  I  can  see  no  argument  in  favor  of  this  irregular, 
expensive,  and  wide-open  policy  but  that  of  speed.  It  is  cutting  across 
lots  in  the  dark  with  many  ditches  to  avoid,  and  some  of  us  were  wisely 
taught  by  our  fathers  that  "  the  longest  way  around  is  the  shortest  way 
home."  There  is  ability  enough  and  to  spare  in  this  assembly  to  com- 
pile, if  thought  best,  the  nineteen  pages  of  our  present  constitution,  save 
the  living  provisions,  and  add  thereto  such  changes  as  you  may  approve. 

The  constitution  so  compiled  and  amended  would  be  printed  with  the 
laws  enacted  by  you  and  freely  circulated  and  discussed  during  the  next 
two  years,  and  when  finally  submitted  to  the  people  it  could  be  voted  for 
intelligently  and  without  fear  of  hidden  flaw  or  deception. 

It  should  also  be  remembered  that  most  of  the  vital  provisions  in  our 
present  constitution  have  been  judicially  construed  by  our  supreme  court, 
and  any  change  in  the  text,  however  slight,  might  entail  much  hardship, 
uncertainty,  and  expensive  litigation. 

In  view  of  the  large  number  of  self-professed  experts  in  constitutional 
surgery,  who,  anticipating  the  pleasures  of  unrestricted  vivisection,  have 
already  provided  themselves  with  knife  and  antiseptic,  you  will,  in  my 
judgment,  serve  and  please  the  people  best  by  permitting  the  use  of  such 
remedies  only  as  may  be  necessary  to  preserve  the  vigor  and  spirit  of  the 
trusted  guardian  of  the  people's  rights. 

The  proposal  to  require  the  election  of  county  commissioners  by  the 
people,  and  all  similar  tilting  for  party  advantage,  have  no  place  in  this 
discussion,  and  should  in  my  opinion  occupy  but  little  of  your  time.  The 
constitution  is  a  limitation  and  should  never  be  made  a  code. 

If  any  change  is  needed  in  the  manner  of  choosing  county  commis- 
sioners or  the  judges  of  our  minor  courts,  it  does  not,  I  think,  lie  in  the 
direction  of  the  town  caucus. 

The  amendment  now  pending  which  provides  for  plurality  election  of 
state  officers,  although  clearly  undemocratic  in  theory,  is  abundantly 
approved  by  precedent  and  experience,  and  until  some  plan  is  devised 
whereby  a  majority  can  express  its  choice  at  one  poll  it  will  be  more 
satisfactory  than  the  present  ultraconservative  method. 

THE  LAW  AND  INDUSTRIAL  INEQUALITY  ^ 

By  George  W.  Alger 

Has  the  state  ever  a  clear  duty  to  lend  a  hand  to  aid  those  who  are 
obviously  at  a  disadvantage  in  struggling  with  the  forces  of  modern  in- 
dustry ?    Under  our  fundamental  law  and  the  principles  declared  in  our 

1  A  paper  presented  before  the  New  York  State  Bar  Association,  January  16, 1907. 


130  AMERICAN  STATE  GOVERNMENT 

Constitution,  can  our  legislatures  and  courts  recognize  not  only  the  facts 
of  existing  industrial  inequality  between  men,  but  a  duty  to  protect  by 
law,  framed  to  meet  new  conditions,  the  weaker  against  the  stronger? 
When  individual  action  alone  cannot  secure  equalization  of  the  conditions 
of  competition,  and  where  that  failure  is  resulting  in  misery  and  distress, 
may  the  law  intervene  to  protect  the  weak  from  the  tyranny  of  the 
strong  ?  Are  the  handicaps  of  life  to  be  questions  solely  for  the  indi- 
vidual, or  are  they  at  times  and  under  special  circumstances  to  be  ques- 
tions for  the  state  itself  to  grapple  with,  and  if  not  to  solve,  at  least  to 
create  conditions  under  which  the  individual  may  solve  them  for  himself  ? 

These  are  difficult  questions  which  our  courts  with  increasing  fre- 
quency are  being  asked  to  answer  when  required  to  determine  the 
validity  of  laws  w'hich  our  legislatures  and  Congress  are  yearly  enacting, 
—  laws  regulating  or  fixing  the  conditions  under  which  industry  shall  be 
carried  on ;  limiting  the  hours  of  labor  of  women  and  children,  and  men 
as  well,  in  overcompetitive  employments  ;  laws  aimed  to  reduce  unneces- 
sary dangers  to  life  and  limb  in  dangerous  trades,  or  dangers  to  health 
in  unhealthful  occupations ;  laws  which,  by  increasing  the  employer's 
responsibility,  seek  to  urge  him  to  new  diligence  in  the  protection  of  his 
employees ;  laws  which,  in  a  multitude  of  ways,  aim  to  control  or  regu- 
late as  special  necessity  may  dictate  the  processes  of  industry,  to  remove 
conditions  which  press  too  heavily  upon  the  overburdened,  and  which, 
uncontrolled,  sap  vitality  and  destroy  or  shorten  life. 

The  general  problem  which  these  questions  raise,  and  which  involves 
both  the  power  and  the  duty  of  the  state,  would  seem  to  have  been 
answered  in  all  the  great  civilized  countries  of  the  world  but  ours  in  the 
affirmative.  Many  of  these  questions  were  settled  in  European  countries 
long  ago.  Economic  conditions  which  gave  them  urgency  earlier  in  the 
Old  World  have  more  recently  come  to  us,  and  the  form  of  the  problem 
which  these  new  conditions  have  raised  as  it  is  presented  to  our  country 
is.  How  far  may  the  legislatures  go  in  enacting  laws  aimed  at  condi- 
tions of  industrial  inequality  under  the  limitations  of  the  law  of  the  land  ? 

Our  fundamental  law  has  for  one  of  its  principles  that  of  equality,  — 
that  before  the  law  men  are  equal  in  rights,  privileges,  and  legal  capacities. 
It  has  for  another  principle  individual  freedom, —  the  right  of  the  individual, 
uncontrolled  by  any  arbitrary  trammels  of  the  state,  to  pursue  any  proper 
calling  and  to  contract  with  others  in  relation  to  that  calling.  The  liberty 
to  pursue  such  calling  is  a  property  right,  is  a  part  of  the  liberty  and 
property  which  shall  not  be  taken  away  without  due  process  of  law. 

Hislf)ry  would  seem  to  show  that  for  the  first  seventy-five  years  at 
least  of  our  national  life  individual  liberty  was  the  dominant  note.  We 
were  opening  a  new  world.  -In  it  there  were  apparently  innumerable 
opportunities  for  individual  enterprise  and  initiative.  Our  national  life 
began,  moreover,  with  greater  industrial  cciuality  than  had  before  existed 
in  any  other  country.    The  Industrial  Revolution  had  not  yet  begun  when 


THE  LEGISLATURE  131 

American  independence  was  declared.  We  were  then  an  agricultural 
people,  for  England,  hoping  to  keep  us  a  market  for  her  manufactures, 
had  forbidden  the  export  of  machinery  to  her  colonies.  The  spinning 
machinery  of  Arkwright  was  not  brought  to  us  until  after  the  war.  The 
power  loom  was  not  invented  until  1785.  There  was  not  a  factory  in 
the  United  States  when  the  Constitution  was  adopted.  The  artisan  was 
his  own  master  and  worked  with  his  own  tools  or  on  simple  machinery 
which,  by  moderate  savings,  he  himself  might  own.  There  were  no  great 
fortunes  in  the  modern  sense,  no  great  corporate  organizations  of  wealth, 
no  factory  system.  Is  it  to  be  wondered  at,  that  beginning  thus  with 
such  a  marked  general  condition  of  industrial  independence  amid  a 
wealth  of  natural  opportunities  for  personal  success,  our  law  should  for 
so  long  have  kept  dominant  the  idea  of  individual  personal  freedom  ? 
Is  it  strange  that  in  the  pursuit  of  individual  fortune  the  interests  of  the 
state  were  often  neglected,  or  that  opportunities  for  unjust  advantage, 
conferred  by  unjust  law  on  the  few  or  seized  by  them  in  spite  of  law, 
failed  to  receive  general  public  interest  among  citizens  too  much  ab- 
sorbed in  their  own  personal  affairs  to  be  aroused  by  the  abuse  of  the 
powers  of  the  state  ? 

With  the  passage  of  time,  however,  with  the  industrial  changes  which 
have  made  an  agricultural  colony  a  power  in  the  markets  of  the  world, 
have  come  changes  in  our  attitude  toward  the  law,  —  changes  produced 
largely  by  economic  variations.  The  modern  note  is  not  simply  indi- 
vidual freedom  ;  it  is  social  freedom,  —  not  freedom  from  law,  but  free- 
dom by  law,  and  in  that  freedom  equality  of  opportunity.  Along  with 
the  tardy  legislation  which  aims  through  law  to  repair  the  oversights  and 
blunders  of  the  past  and  restore  so  far  as  may  be  that  equality  of  oppor- 
tunity, which  seeks  to  take  away  privilege  and  unjust  enrichment,  to 
prevent  transportation  discriminations,  and  to  reduce  the  advantages  in 
competition  of  fraud  over  honesty,  comes  legislation  of  another  kind 
which  aims  at  the  industrial  welfare  of  the  many  by  limiting  the  indi- 
vidual freedom  of  the  few ;  by  imposing  new  duties  on  the  strong  for 
the  protection  of  the  weak. 

The  greater  part  of  this  protective  legislation  must  find  its  justification, 
if  at  all,  before  the  courts,  through  the  police  power.  The  old  theorj^  of 
legal  equality,  based  upon  the  existence  of  industrial  equality,  finds  itself 
in  conflict  with  the  facts  of  life.  Unless  the  state  must  admit  itself 
powerless  to  deal  with  new  conditions  of  modern  society,  authority  must 
be  found  in  the  police  power  to  meet  their  demands  for  law.  The  con- 
stant expansion  of  that  power  in  the  last  fifteen  years,  as  expressed  in 
legislative  enactments  and  in  the  increased  bulk  of  decisions  sustaining 
these  enactments,  seems  to  indicate  an  almost  conscious  purpose  of 
society,  constrained  by  its  own  necessities,  to  limit  the  range  of  indi- 
vidual freedom.  This  growth  of  the  police  power  is  one  of  the  marked 
features  of  modern  American  law. 


132  AMERICAN  STATE  GOVERNMENT 

It  is  with  great  wisdom  that  the  courts  have  refrained  from  defining 
the  police  power  lest  it  crystallize  by  definition  and  lose  its  capacity  to 
expand.  In  it  is  contained  the  reserved  right  of  the  state  to  preserve  its 
own  growth,  to  make  provisions  for  new  conditions  as  they  appear.  It 
is  the  law  which  must  find  its  authority  in  the  needs  of  the  present  and 
not  solely  in  the  traditions  of  the  past.  It  is  because  that  law  is  so 
obviously  in  a  state  of  evolution  that  the  courts  have  refused  to  say 
where  the  constitutional  boundaries  limiting  its  exercise  are  to  be  fixed. 

As  a  part  of  the  expansion  of  the  police  power  the  courts  have  declared 
in  a  number  of  cases  the  right  of  the  legislature  to  enact  laws  not  only 
for  health,  safety,  or  morals  of  the  general  public,  but  for  the  protection 
of  individuals  whose  condition  gives  them  special  need  of  legal  protection, 
or  whose  individual  freedom  has  lost  in  a  measure  its  reality  through  eco- 
nomic pressure.  Industrial  inequality  is  being  recognized  as  a  justifica- 
tion for  the  exercise  of  the  police  power  in  aid  of  the  health,  safety,  and 
well-being  of  citizens  suffering  from  its  burden.  In  Holden  vs.  Hardy 
(169  U.  S.  366),  the  case  in  which  the  United  States  Supreme  Court  up- 
held the  constitutionality  of  the  Utah  Eight-Hour  Law  for  underground 
miners,  the  court,  after  considering  at  some  length  the  conditions  injuri- 
ous to  the  health  in  the  miner's  occupation,  observes : 

The  legislature  has  also  recognized  the  fact  which  the  experience  of  legisla- 
tures in  many  states  has  corroborated,  that  the  proprietors  of  these  establish- 
ments and  their  operators  do  not  stand  upon  an  equality,  and  that  their  interests 
are,  to  a  certain  extent,  conflicting.  The  former  naturally  desire  to  obtain  as 
much  labor  as  possible  from  their  employees,  while  the  latter  are  often  induced 
by  fear  of  discharge  to  conform  to  regulations  which  tlicir  judgment,  fairly  ex- 
ercised, would  pronounce  to  be  detrimental  to  their  health  or  strength  ;  in  other 
words,  the  proprietors  lay  down  the  rules  and  the  laborers  arc  practically  con- 
strained to  obey  them.  In  such  cases  self-interest  is  often  an  unsafe  guide  and 
the  legislature  may  properly  interpose  its  authority.  .  .  .  The  fact  that  both 
parties  are  of  full  age  and  competent  to  contract  does  not  necessarily  deprive 
the  state  of  the  power  to  interfere  where  the  parties  do  not  stand  upon  an 
equality  or  where  the  public  health  demands  that  one  party  to  the  contract 
shall  be  protected  against  himself.  The  state  still  retains  an  interest  in  his  wel- 
fare, however  reckless  he  may  be.  The  whole  is  no  greater  than  the  sum  of 
all  the  parts,  and  when  the  individual  health,  safety,  and  welfare  are  sacrificed 
or  neglected  the  state  must  suffer. 

The  same  court  more  recently,  in  Knoxville  Iron  Company  7's.  Harbi- 
son ('183  U.  S.  13),  was  called  upon  to  test  the  validity  under  the  four- 
teenth amendment  of  an  act  of  Tennessee  requiring  the  redemption 
in  cash  of  store  orders  or  other  evidences  of  indebtedness  issued  by 
employers  in  payment  of  wages  due  employees.  In  upholding  the  law 
the  court  quoted  with  approval  the  decision  of  tlie  supreme  court  of 
Tennes.see : 

The  legislature  evidently  deemed  tin-  laljorcr  at  some  disadvantage  under 
existing  laws  and  customs,  and  by  this  act  undertook  to  ameliorate  his  condition 


THE  LEGISLATURE 


^33 


in  some  measure  by  enabling  him  or  his  /?o;m  Jide  transferee,  at  his  election 
and  at  a  proper  time,  to  demand  and  receive  his  unpaid  wages  in  money 
rather  than  in  something  less  valuable.  Its  tendency,  though  slight  it  may  be, 
is  to  place  the  employer  and  employee  upon  equal  ground  in  the  matter  of 
wages,  and  so  far  as  calculated  to  accomplish  that  end  deserves  commendation. 

How  great  the  industrial  inequality  must  be,  how  far  the  worker  must 
be  unable  to  protect  himself  to  justify  police  legislation  for  his  better- 
ment, are  still  open  questions.  But  the  courts  have  declared  that  the 
state  may  act  to  protect  women  and  children  against  excessive  labor 
(Wenham  vs.  State,  65  Neb.  394,  91  N.  W.  421  ;  Commonwealth  vs. 
Hamilton  Mfg.  Co.,  120  Mass.  383  ;  State  vs.  Buchanan,  29  Wash.  602)  ; 
that  it  may  provide  regulations  for  greater  safety  and  comfort  of  factory 
and  railway  employees  (People  vs.  Smith,  108  Mich.  527  ;  State  vs. 
Whitaker,  160  Mo.  59  ;  State  vs.  Nelson,  52  Ohio  St.  88);  that  it  may 
change  the  common  law  and  take  away  defenses  in  actions  for  personal 
injuries  which  heretofore  existed  (Ry.  Co.  vs.  Mackey,  127  U.  S.  205  ; 
Tullis  vs.  Ry.  Co.,  175  U.  S.  348  ;  Minn.  Iron  Co.  vs.  Kline,  199  U.  S. 
593) ;  that  it  may  in  certain  cases  limit  the  hours  of  labor  of  men  (in 
mines:  In  re  Boyce  [Nev.],  75  P.  Rep.  i  ;  State  vs.  Cantwell,  179  Mo. 
245  ;  on  street  railways,  re  Ten-Hour  Law  for  street-railway  corpora- 
tions :  24  R.  I.  603)  ;  that  it  may  regulate  to  a  certain  extent  the  terms 
and  conditions  under  which  employees  shall  be  paid  for  their  services,  and 
prescribe  how  they  shall  be  paid  (Knoxville  Iron  Co.  vs.  Harbison,  183 
U.  S.  13;  St.  Louis,  etc.,  Ry.  Co.  vs.  Paul,  173  U.  S.  404;  Wilson  vs. 
State,  61  Kan.  32;  Hancock  z'i-.  Yaden,  121  Ind.  366). 

That  there  is  often  great  disagreement  between  judges  as  to  the  limits 
of  the  police  power  in  protective  or  regulative  legislation  of  this  kind, 
goes  without  saying.  The  state  courts  often  flatly  contradict  one  another 
both  as  to  their  own  powers  and  as  to  the  policy  of  the  courts.  Compare, 
for  example,  People  vs.  Havnor  (149  N.  Y.  195),  upholding  a  Sunday- 
closing  law  for  barbers,  with  Ex  parte  Jentzsch  (112  Cal.  468),  both 
cases  being  decided  in  the  same  year,  1896.  The  California  courts  indig- 
nantly repudiate  any  power  on  the  part  of  the  legislature  to  take  away 
from  the  barber  his  constitutional  right  to  work  all  day  on  holidays  and 
Sundays,  and  declare  that  to  sustain  such  a  law  would  be  to  send  the 
barbers  from  the  prison  to  the  poorhouse  !  In  spite  of  the  numbers  of 
decisions  which  have  been  rendered,  the  question  of  what  are  the  limits 
of  legislative  regulation  or  control  of  industry  through  the  police  power 
is  still  an  open  one.  The  courts  have  adopted  no  general  policy,  and  it 
is  fortunate  that  they  are  not  obliged  to  adopt  one. 

The  validity  or  invalidity  of  protective  laws  of  this  character  is  ordi- 
narily a  question  for  the  state  courts,  and  to  be  determined  with  refer- 
ence to  state  constitutions  only.  Such  is  the  view  which  the  Supreme 
Court  of  the  United  States  has  taken  almost  uniformly  in  construing 
exercises  of  the  police  power  by  state  legislatures.    Numerous  state  laws 


134  AMERICAN  STATE  GOVERNMENT 

of  this  kind  have  been  tested  in  the  federal  courts  to  determine  whether 
they  violate  the  fourteenth  amendment  and  its  sweeping  provisions  for- 
bidding the  states  from  abridging  the  privileges  and  immunities  of  citi- 
zens of  the  United  States  or  denying  them  the  benefits  of  due  process  or 
equal  protection  of  the  laws.  That  court  has  repeatedly  declared  that 
the  police  power  was  reserved  by  the  states  at  the  time  the  original  Con- 
stitution was  adopted  (Mugler  t's.  Kansas,  123  U.  S.  623),  and  that  the 
fourteenth  amendment  does  not  impair  its  authority  (Barbier  vs.  Con- 
nolly, 113  U.  S.  27). 

In  Holden  rs.  Hardy,  Judge  Browm  expresses  the  noninter\^ention 
policy  of  the  federal  courts  and  its  reason.  After  reviewing  changes  by 
legislation  which  states  have  made  in  the  past,  he  observes : 

An  examination  of  both  classes  of  these  cases  under  the  Fourteenth  Amend- 
ment will  demonstrate  that  in  passing  upon  the  validity  of  state  legislation  un- 
der that  amendment  this  court  has  not  failed  to  recognize  the  fact  that  the  law 
is  to  a  great  extent  a  progressive  science  .  .  . ;  that  restricdons  which  had  for- 
merly been  laid  upon  the  conduct  of  individuals  or  of  classes  of  individuals  had 
proved  detrimental  to  their  interests,  while,  upon  the  other  hand,  certain  other 
classes  of  persons,  particularly  those  engaged  in  dangerous  or  unhealthful  em- 
ployments, had  been  found  to  be  in  need  of  additional  protection.  They  are 
mendoned  only  for  the  purpose  of  calling  attention  to  the  probability  that 
other  changes  of  no  less  importance  may  be  made  in  the  future,  and  that  while 
the  cardinal  principles  of  justice  are  immutable,  the  methods  by  which  justice 
is  administered  are  subject  to  constant  fluctuaUon,  and  that  the  Consdtudon  of 
the  United  States,  which  is  necessarily  and  to  a  large  extent  inflexible  and  ex- 
ceedingly difficult  of  amendment,  should  not  be  so  construed  as  to  deprive  the 
states  of  the  powers  so  to  amend  their  laws  as  to  make  them  conform  to  the 
wishes  of  the  citizens  as  they  may  deem  best  for  the  public  welfare,  without 
bringing  them  in  conflict  with  the  supreme  law  of  the  land. 

The  broad  scope  for  legislative  action  which  is  thus  assured  the  states 
is  apparent  from  this  and  other  cases  in  that  court. 

As  the  court  says  in  Gundling  vs.  Chicago  (177  U.  S.  183) : 

Regulations  respecting  the  pursuit  of  a  lawful  trade  or  business  are  of  very 
frequent  occurrence  in  the  various  ciucs  in  the  country,  and  what  such  regula- 
tions shall  be,  and  to  what  particular  trade,  business,  or  occupadon  they  shall 
apply,  are  questions  for  the  state  to  determine,  and  their  determination  comes 
within  the  proper  exercise  of  the  police  power  by  the  state ;  and  unless  the 
regulations  are  so  utterly  unreasonable  and  extravagant  in  their  nature  and 
purpose  that  the  property  and  personal  rights  of  the  citizens  arc  unnecessarily, 
and  in  a  manner  wholly  arbitrary,  interfered  with  or  destroyed  without  due 
process  of  law,  they  do  not  extend  beyond  the  power  of  the  state  to  pass,  and 
they  form  no  subject  for  federal  interference. 

See  also  Patterson  vs.  Kentucky,  97  U.  S.  501  •,  Barbier  7's.  Connolly, 
113  U.S.  27;  Jacobson  vs.  Mas.sachusetts,  197  U.S.  11;  Minnesota 
Iron  Co.  vs.  Kline,  199  U.  S.  593. 


THE  LEGISLATURE 


135 


This  general  attitude  of  the  United  States  Supreme  Court  is  impor- 
tant in  view  of  the  tendency  of  the  state  courts,  when  holding  statutes  of 
this  kind  to  be  unconstitutional,  to  make  the  fourteenth  amendment  one 
of  the  grounds  for  their  decision.  No  appeal  lies  to  the  United  States 
Supreme  Court  from  such  decisions,  and  when  the  state  court  bases  its 
ruling  on  this  ground,  amendments  of  the  state  constitution  can  afford 
no  remedy.  The  state  courts  sometimes  are  more  sensitive  to  infractions 
of  the  federal  Constitution  than  the  Supreme  Court  itself.  Our  court 
of  appeals,  for  example,  nullified  under  the  fourteenth  amendment  the 
Eight-Hour  Law  on  Public  Works  (People  vs.  Orange  County  Construc- 
tion Co.,  175  N.  Y.  84).  No  further  appeal  remained  for  those  interested 
in  sustaining  the  validity  of  this  law.  Shortly  after  this,  however,  the 
United  States  Supreme  Court,  in  a  case  involving  a  similar  statute  (Atkin 
vs.  Kansas,  191  U.  S.  207),  held  that  its  constitutionality  was  beyond  all 
question.  Not  infrequently,  when  the  federal  question  is  thus  removed, 
state  constitutions  are  amended  to  permit  legislation  for  which  there  is 
strong  popular  demand.  In  Colorado,  before  the  decision  of  the  United 
States  Supreme  Court  in  Holden  vs.  Hardy,  sustaining  the  Eight- 
Hour  Law  for  miners,  the  state  court  had  advised  the  legislature  that 
a  proposed  law  of  the  same  order  would  be  unconstitutional  under  the 
fourteenth  amendment  as  well  as  under  the  state  constitution  (In  re 
Eight-Hour  Bill,  21  Col.  29).  Thereafter,  when  the  Supreme  Court  had 
disposed  of  the  federal  question  in  Holden  vs.  Hardy,  the  legislature 
enacted  a  similar  law  which  the  Colorado  courts  held  to  be  unconstitu- 
tional, but  solely  under  the  state  constitution  (In  re  Morgan,  26  Col. 
415).  Thereafter  (as  in  New  York,  after  the  decision  of  Atkin  vs.  Kan- 
sas) the  constitution  of  the  state  was  amended  to  permit  the  legislation 
desired  by  the  people. 

In  Illinois  a  decision  (Ritchie  vs.  People,  155  111.  98)  declares  uncon- 
stitutional a  law  prohibiting  more  than  eight  hours  a  day  or  forty-eight 
hours  a  week  for  the  labor  of  women  in  factories.  Its  reasoning  is 
based  on  the  fourteenth  amendment  and  upon  the  state  constitution. 
The  decision  is  generally  regarded  by  writers  on  the  police  power  as 
erroneous  so  far  as  the  fourteenth  amendment  is  concerned,  and  dicta 
in  subsequent  decisions  of  the  United  States  Supreme  Court  leave  little 
doubt  that  the  federal  question  would  have  been  otherwise  decided  by 
that  court ;  but,  with  the  decision  of  the  Illinois  court  placed  squarely  on 
the  federal  Constitution,  it  is  obviously  a  fruitless  task  for  those  inter- 
ested in  the  protection  of  women  in  industry  to  attempt  to  change  the 
Illinois  constitution. 

The  only  recent  decision  of  the  United  States  Supreme  Court  on 
legislation  of  the  character  herein  considered,  in  which  the  act  in  ques- 
tion was  found  to  be  unconstitutional,  is  Lochner  vs.  New  York  (198 
U.  S.  45),  involving  our  law  limiting  the  hours  of  labor  in  bakeries  to 
sixty  per  week,  or  ten  hours  a  day.  This  decision  was  concurred  in  by  a 


I  -6  AMERICAN   STATE  GOVERNMENT 

bare  majority  of  the  court  and  is  narrow  in  its  scope.  The  court  refuses 
to  consider  the  act  as  one  passed  for  the  health  of  bakers.  It  construes 
the  law  as  one,  "  the  real  object  and  purpose  of  which  was  to  regulate 
the  hours  of  labor  between  master  and  employees  (all  being  men  —  sui 
juris)  in  a  private  business  not  dangerous  in  any  degree  to  morals  or  in 
any  real  or  substantial  degree  to  the  health  of  the  employee.  Under 
these  circumstances,"  it  says,  "  the  freedom  of  the  master  and  servant 
to  contract  with  each  other  in  relation  to  their  employment,  and  in  defining 
the  same,  cannot  be  prohibited  or  interfered  with  without  violating  the 
federal  Constitution."'  It  must  be  admitted  that,  if  followed  in  subsequent 
decisions,  the  authority  assumed  in  this  case  over  the  exercise  of  the  police 
power  by  the  state  legislatures  will  tend  ver)-  materially  to  diminish  the 
powers  of  legislatures  to  make  laws  for  conditions  within  their  borders 
requiring,  in  their  judgment,  industrial  legislation.  If  I  may  venture  a 
personal  opinion,  it  is  that  the  decision  is  a  reactionar)'  one  which  will  not 
be  enlarged  beyond  its  immediate  facts  in  subsequent  rulings.  The  facts 
themselves  which  the  court  finds  as  a  basis  for  its  decision  regarding  the 
general  healthfulness  of  the  baker's  occupation,  are  themselves  contrary  to 
the  conclusions  of  modem  investigators,  who  have  found  the  occupation 
to  be  one  of  unusual  unhealthfulness  and  of  extraordinary'  mortality. 

The  United  States  Supreme  Court  has  usually,  in  reviewing  exercises 
by  the  state  legislatures  of  the  police  power,  been  influenced  by  a  reflec- 
tion well  expressed  by  Justice  Harlan  in  Atkin  vs.  Kansas  (191  U.S. 
207,  at  p.  223),  where  he  says: 

No  evils  arising  from  such  legislation  could  be  more  far-reaching  than 
those  which  might  come  to  our  system  of  government  if  the  judiciary,  abandon- 
ing the  sphere  assigned  to  it  by  the  fundamental  law.  should  enter  the  domain 
of  legislation,  and,  upon  grounds  merely  of  justice  and  reason  or  wisdom, 
annul  statutes  that  had  received  the  sanction  of  the  people's  representatives. 

The  extent  to  which  the  police  power  of  the  state  shall  expand  to 
meet  economic  and  social  conditions  depends,  of  course,  largely  upon 
the  attitude  of  the  judiciary.  The  judicial  policy,  as  expressed  in  the 
courts,  has  ordinarily  been  against  fixing  upon  the  police  power  rigid 
rules.  As  the  supreme  court  of  Nebraska  has  said  in  a  decision  sustain- 
ing an  act  limiting  the  hours  of  women  in  mercantile  establishments 
(Wenham  vs.  State,  65  Neb.  394  [1902]): 

We  are  unable  to  find  a  case  where  the  courts  have  laid  down  any  rigid 
rule  for  the  exercise  of  the  police  power.  There  is  litUc  reason  under  our 
.system  of  government  for  placing  a  narrow  interpretation  on  this  power, 
restricting  its  scope  so  as  to  hamper  the  legislature  in  dealing  with  the  varying 
necessities  of  society  and  new  circumstances  as  they  arise,  calling  for  legisla- 
tive intervention  in  the  public  interest.  The  moment  the  police  power  is  dis- 
turbed or  curbed  by  fixed  or  rigid  rules,  a  danger  will  he  introduced  into  our 
system  which  will  be  far  greater  than  the  results  arising  from  an  occcisional 
mistake  by  legislative  bodies  in  exercising  such  power. 


THE  LEGISLATURE 


137 


An  objection  often  heard  to  legislation  of  this  kind  comes  from  those 
who  deny  that  ethical  gains  can  come  through  legislation.  They  say, 
and  it  is  undoubtedly  true,  that  the  courts  and  the  legislatures  can  by  no 
action  of  theirs  destroy  human  selfishness  or  rapacity.  If,  in  the  rush 
for  wealth,  standards  of  national  honor  have  been  lowered,  if  we  have 
canonized  capital  instead  of  character,  —  if  all  this  be  true  (and  I  do  not 
believe  it  to  be  true),  then  we  cannot  change  the  moral  fiber  of  dishonest 
men  by  legislation.  But  admitting  all  this,  and  that  the  law  cannot  trans- 
form the  character  of  the  avaricious  and  cruel,  even  the  most  conserva- 
tive of  us  must  admit  that  it  can,  if  the  limitations  of  our  law  will  permit, 
create  conditions  under  which  men  who  are  willing  to  conduct  business 
on  a  plane  higher  than  that  of  mere  dollars  and  cents,  shall  not  be 
ground  down  by  competitors  willing  to  oppress  the  lives  of  others  to 
make  trade  profits.  As  a  wise  and  yet  conservative  student  of  our 
institutions  has  said : 

There  are  some  things  outside  the  field  of  natural  monopolies  in  which 
individual  action  cannot  secure  equalization  of  conditions  of  competition,  and 
in  these  also,  as  in  the  regulation  of  monopolies,  the  practice  of  government, 
of  our  own  as  well  as  of  others,  has  been  increasingly  on  the  side  of  govern- 
ment regulation.  By  forbidding  child  labor,  by  supervising  the  sanitary  con- 
ditions of  factories,  by  limiting  the  employment  of  women  in  occupations 
hurtful  to  their  health,  by  instituting  official  tests  of  the  purity  or  quality  of 
goods  sold,  by  limidng  hours  of  labor  in  certain  trades,  by  a  hundred  and  one 
limitations  of  the  power  of  unscrupulous  or  heartless  men  to  outdo  the  scrupu- 
lous and  merciful  in  trade  or  industry,  government  has  assisted  equity.  Those 
who  would  act  in  moderation  and  good  conscience  where  moderation  and 
good  conscience,  to  be  indulged,  require  an  increased  outlay  of  money,  in  better 
ventilated  buildings,  in  greater  care  as  to  quality  of  goods,  etc.  —  cannot  act 
upon  their  principles  so  long  as  grinding  conditions  for  labor  or  more  un- 
scrupulous use  of  the  opportunities  of  trade  secure  to  the  unconscientious  an 
unquestionable  and  sometimes  even  a  permanent  advantage ;  they  have  only 
the  choice  of  denying  their  consciences  or  retiring  from  business.  In  scores 
of  such  cases  government  has  intervened  and  will  intervene  by  way  not  of 
interference,  but  by  way  rather  of  making  competition  equal  between  those  who 
would  rightly  conduct  enterprise  and  those  who  basely  conduct  it.  It  is  in  this 
way  that  society  protects  itself  against  permanent  injury  and  deterioration  and 
secures  healthful  equality  of  opportunity  for  self-development.^ 

The  danger  is  more  imaginary  than  real,  that  these  interventions,  as 
President  Wilson  calls  them,  of  the  state  in  industry  would,  under  a 
broad  construction  of  the  police  power  by  the  courts,  be  too  frequent ; 
that  individual  initiative  would  be  cramped  by  unnecessary  and  unreason- 
able restraints,  that  handicaps  would  be  placed  upon  legitimate  compe- 
tition by  this  type  of  legislation.  Our  legislatures,  for  example,  have 
almost  uniformly  listened  with  strained  attention  to  the  representatives 
of  great  business  interests,  even  when   they  have  opposed  the  most 

1  Woodrow  Wilson,  The  State,  sect.  127S. 


138  AMERICAN  STATE  GOVERNMENT 

reasonable  limitations  on  their  powers,  the  most  righteous  extensions  of 
their  duties  and  liabilities..  We  are  to-day,  for  example,  behind  all  other 
great  civilized  countries  of  the  world  in  the  protection  which  our  law 
affords  the  safety  of  employees.  Such  protective  laws  as  have  been  up- 
held as  to  their  constitutionality  have  been  almost  invariably  strictly  con- 
strued by  the  courts  against  the  purposes  of  the  legislature.  Take  a 
single  illustration.  In  1847  England  adopted  as  a  part  of  her  factory 
act  a  provision  requiring  guards  to  be  placed  upon  dangerous  machinery. 
It  has  enforced  that  law.  Fort)'  years  later  New  York  adopted  substan- 
tially the  same  statute.  Her  courts,  however,  have  practically  nullified 
it  (compare  Knisley  vs.  Pratt,  147  N.  Y.  372,  with  Baddesley  z's.  Lord 
Granville,  19  Q.  B.  D.  423  ;  Simpson  vs.  N.  Y.  Rubber  Co.,  80  Hun,  418, 
with  de  Young  vs.  Irving,  5  A.D.  449).  Our  law,  as  regards  responsi- 
bility of  employers  for  industrial  accidents,  is  generally  regarded  by  the 
learned  textbook  writers  as  unjust  in  important  particulars  and  unsuited 
to  our  time.  Yet  how  slowly,  how  unwillingly  ha\e  the  legislatures  in- 
creased the  responsibilities  of  employers  ;  how  few  states  have  abolished 
the  fellow-servant  doctrine  or  changed  the  rule  of  assumed  risk.  We 
kill  or  injure,  we  are  told,  over  half  a  million  people  in  industrial  em- 
ployments in  the  United  States  ever)'  year  (see  North  Ameriian  Re- 
view of  November  16,  1906,  "Our  Industrial  Juggernaut").  Our  own 
Commissioner  of  Labor  some  years  ago  estimated  that  in  this  state  we 
annually  cripple,  kill,  or  injure  40,000  individuals  in  our  industrial  estab- 
lishments. Yet,  we  have  made  but  rudimentary  changes  in  the  law. 
The  Employers'  Liability  Act,  adopted  in  this  state  in  1902,  was  not 
more  advanced  in  its  principles  than  that  which  England  adopted  in 
1880  and  had  abandoned  as  inadequate  five  years  before  our  own  act 
was  made  law.  Yet  our  statute  took  seven  years  to  obtain  its  passage 
from  the  New  York  legislature.  The  Federal  Emplo)-crs'  Liability  Act 
of  1905,  the  most  far-reaching  American  law  on  the  liability  of  railroads 
to  their  employees,  enacted  after  years  of  agitation,  and  now  under  a 
temporary  eclipse  as  to  its  constitutionality,  is  not  more  favorable  to 
those  employees  than  the  law  of  Prussia  was  in  1838. 

With  states  vying  with  one  another  in  increasing  competition  for 
trade,  our  legislatures  are  not  likely  to  impose  handicaps  which  will  drive 
business  interests  away  from  their  borders.  This  hesitancy  of  the  legis- 
latures to  place  these  interests  at  a  disadvantage  in  competing  with 
establishments  in  other  states,  coupled  with  the  conservatism  of  the 
courts,  have  generally  proved  sufficient  guaranties  against  meddlesome 
and  unnecessary  legislation,  and  such  guaranties  are  likely  to  continue 
even  if  the  police  power  be  largely  expanded  to  meet  new  conditions. 

The  danger  from  the  increase  of  the  police  power  is  not  great.  The 
danger  from  judicial  construction  of  that  power  which  shall  stop  its  ex- 
pansion is  more  serious.  Our  .social  order  has  many  enemies,  enemies 
who   find  arguments   for  presaging  its  disintegration   and  decay  in  the 


THE  LEGISLATURE  139 

enormous  concentration  of  wealth,  in  the  growth  of  the  great  corpora- 
tions, in  the  financial  dishonesty  which  has  been  so  recently  exposed  in 
high  places,  and  in  the  misery  and  wretchedness  of  thousands  whose 
lives  are  exploited  in  industry.  But  their  arguments,  with  all  the  exag- 
gerations and  falsehoods  which  may  be  added  to  them  by  a  sensational 
press,  while  they  may  inflame  the  blood  of  discontent,  will  never  carry 
general  conviction  until  the  courts  have  first  convinced  the  people  that 
in  the  presence  of  social  and  industrial  wrong  .  the  state  is  powerless 
to  meet  conditions  which  demand  law ;  until  the  courts  have  convinced 
the  people  that,  bound  and  fettered  by  an  inflexible  written  Constitution 
framed  over  a  century  ago,  the  state  cannot  exercise  functions  which 
the  present  needs  of  society  require  it  to  exercise. 

These  decisions  of  the  courts  which  the  socialist  looks  for  with  eager 
expectancy  —  declarations  of  the  paralysis  of  the  state,  of  its  inability  to 
deal  with  economic  problems  by  law  —  are,  however,  few  and  far  between. 
Reactionary  judges  there  may  be  at  times  who  refuse  to  be  our  con- 
temporaries, who  look  only  to  the  past  to  judge  the  needs  of  the  present, 
—  yet  slowly  but  surely,  as  public  opinion  matures,  the  power  of  the 
state  is  expanding  to  protect  as  well  as  to  punish,  in  a  land  wherein  the 
recognized  rights  of  the  individual  include  not  only  liberty  but  life  and 
a  fair  field  for  the  pursuit  of  happiness. 


Ill 

THE  JUDICIARY 

COURTS  OF  LAST  RESORT  ^ 

By  William  L.  Carpenter 

In  America  courts  of  last  resort  occupy  a  unique  position.  Our  written 
constitutions  distribute  the  powers  of  government  among  three  depart- 
ments, —  the  legislative,  the  executive,  and  the  judicial.  Who  shall  deter- 
mine the  limits  of  the  jurisdiction  of  these  several  departments  ?  This 
question  is  not  answered  in  express  words  in  any  of  our  constitutions. 
It  was  answered,  however,  at  a  very  early  date  by  Chief  Justice  Mar- 
shall, speaking  for  the  Supreme  Court  of  the  United  States  in  the  cele- 
brated case  of  Marbury  vs.  Madison.  In  that  case  Marshall  held  that  in 
deciding  a  controversy  according  to  law,  the  judiciary  —  the  court  of 
last  resort  —  was  bound  to  apply  the  higher  law  found  in  the  Constitution, 
rather  than  an  opposing  law  enacted  by  the  legislative  department,  and 
consequently  to  declare  unconstitutional,  null,  and  void  the  conflicting 
legislative  enactment.  It  followed  from  this  decision  and  this  reasoning 
that  any  wrong  caused  by  the  legislative  department  of  government 
exceeding  its  constitutional  limitations  could  be  redressed  by  the  judiciary 

—  by  the  courts  of  last  resort.  And  that  any  wrong  committed  by  the 
executive  department  of  government  in  exceeding  its  constitutional  limi- 
tations could  likewise  be  redressed  by  those  courts.  It  also  followed 
from  this  decision  that  there  was  no  constitutional  means  of  obtaining 
redress  for  a  wrong  committed  by  courts  of  last  resort  in  exceeding 
their  jurisdiction.  This  decision  made  the  judiciary,  as  has  well  been 
said,  the  keystone  of  the  arch  of  government. 

Many  eminent  lawyers  denied  the  correctness  of  Marshall's  opinion. 
Some  eminent  lawyers  to-day  doubt  its  correctness.  The  Constitution,  it 
is  said,  makes  each  of  the  departments  of  government  independent  and 
equal.  The  decision,  it  is  said,  destroyed  this  equality.  It  made  the 
judiciary,  represented  by  the  court  of  last  resort,  supreme,  —  the  execu- 
tive and  the  legislative  departments  of  government,  subordinate.  Whether 
Marshall's  opinion  was  or  was  not  correct  —  that  is,  whether  he  jjkiced 
upon  the  Constitution  the  construction  intended  by  those  who  framed  it 

—  is  a  question  which  it  would  be  idle  to  discuss,  for  that  construction 

1  From  an  address  before  the  American  Bar  Association,  1909. 

140 


THE  JUDICIARY  14 1 

has  been  universally  accepted.  It  was  a  wise  construction.  It  furnished 
a  constitutional  tribunal  to  determine  every  question  which  might  arise. 
It  lessened  —  perhaps  it  banished  —  the  danger  of  disruption  of  govern- 
ment arising  from  differences  between  opposing  factions.  The  principle 
of  this  decision  was  not  confined  to  its  application  to  the  national  gov- 
ernment. It  applied  with  full  force  to  the  government  of  the  several 
states.  This  has  been  universally  recognized.  It  may  be  said,  therefore, 
that  as  the  Supreme  Court  of  the  United  States  is  the  keystone  of  the 
arch  of  the  federal  government,  so  likewise  the  court  of  last  resort  of 
each  state  is  the  keystone  of  the  arch  of  the  government  of  that  state. 

It  will  be  observed  that  this  paramount  authority  of  the  judiciar)^  rests 
upon  the  proposition  that  it  is  the  duty  of  the  judiciary  to  determine 
controversies  according  to  the  law ;  and  the  possession  of  this  extraor- 
dinary authority  has  never  endangered  the  rights  of  a  free  people,  be- 
cause the  only  way  that  it  could  be  exercised  was  by  determining  con- 
troversies according  to  law.  All  our  constitutions,  both  federal  and  state, 
may  then  be  read  as  if  they  contained  the  provision :  Upon  the  faith 
that  our  court  of  last  resort  will  determine  controversies  according  to 
law,  we,  the  people,  grant  it  supreme  authority.  Faith  that  our  courts 
of  last  resort  will  determine  controversies  according  to  law  is  then  the 
rock  upon  which  our  governments  are  built.  That  courts  of  last  resort 
must  determine  controversies  according  to  law  is  the  most  elementary 
of  legal  principles.  This  is  almost  the  first  principle  learned  by  every 
lawyer,  and  this  means  every  judge.  Yet  it  is  a  principle  which  should 
be  emphasized  and  reemphasized,  for  it  should  never  be  lost  to  view. 
It  should  always  be  appreciated.  It  is  not  always  appreciated.  I  will 
say  nothing  derogatory  of  judges.  If  there  is  any  one  who  believes  that 
judges  never  fail  to  appreciate  this  fundamental  truth,  I  am  immensely 
pleased,  and  I  will  not  attempt  to  destroy  his  faith.  Certain  it  is  that 
lawyers  do  not  always  appreciate  it.  If  they  did,  they  would  not,  as 
they  often  do,  urge  considerations  calculated  to  incite  feelings  of  sym- 
pathy and  prejudice,  and  thereby  hide  from  the  view  of  the  courts  the 
legal  questions  involved.  Nor  would  they  seek  to  justify  such  conduct 
by  saying,  If  I  can  succeed  in  convincing  the  judge  of  the  merits  of  my 
client's  case,  I  will  take  my  chances  on  the  law.  With  this  conduct  on 
the  part  of  intelligent  lawyers,  it  should  not  surprise  us  that  laymen 
should  have  obscure  views  on  this  question.  It  should  not  surprise  us 
that  at  times  they  should,  in  scathing  terms,  condemn  and  denounce  a 
judge  for  deciding  a  controversy  in  which  they  are  interested  in  accord- 
ance with  law  and  opposed  to  their  ideas  of  justice.  It  is  impossible  to 
believe  that  the  man  who  utters  such  denunciation  and  condemnation 
understands  the  fundamental  truth  which  I  have  tried  to  enunciate.  It 
cannot  be  that  he  understands  that  judges  are  bound  by  the  most  sacred 
oath  to  decide  controversies  according  to  law  ;  that  faith  that  they  should 
so  decide  them  is  the  most  fundamental  of  constitutional  principles  ;  that 


142  AMERICAN   STATE  GOVERNMENT 

men  cannot  be  accorded  equal  rights  and  privileges  unless  those  rights 
and  privileges  are  all  measured  by  the  common  standard,  —  the  standard 
furnished  by  the  law.  He  who  appreciates  this  truth  cannot  fail  to  see 
that  any  effort  made  to  induce  courts  of  last  resort  to  disregard  the  law 
in  deciding  controversies  is  an  effort  to  overthrow  constitutional  govern- 
ment. I  plead  not  for  the  execration  of  the  man  who  makes  that  effort, 
but  for  his  enlightenment.  He  should  be  made  to  appreciate  the  truth. 
Every  citizen  should  be  made  to  appreciate  it.  A  greater  endeavor 
should  therefore  be  made  to  teach  that  truth.  It  should  become  a 
popular  truth. 

It  may  be  asked,  What  difference  does  it  make  that  a  judge  is  de- 
nounced for  faithfully  performing  the  duty  reposed  in  him  by  the  people  .' 
His  duty  is  none  the  less  clear.  He  has  no  choice.  He  must  perform  it. 
He  must  say,  as  Chief  Justice  Marshall  said  in  a  similar  case : 

No  man  is  desirous  of  placing  himself  in  a  disagreeable  situation.  No  man 
is  desirous  of  becoming  the  peculiar  subject  of  calumny.  No  man,  might  he  let 
the  bitter  cup  pass  from  him  without  self-reproach,  would  drain  it  to  the  bottom. 
But  if  he  have  no  choice  in  the  case,  if  there  be  no  alternative  presented  to 
him  but  a  dereliction  of  duty  or  the  opprobrium  of  those  who  are  denomi- 
nated the  world,  he  merits  the  contempt  as  well  as  the  indignation  of  his 
country,  who  can  hesitate  which  to  embrace. 

It  is  none  the  less  a  lamentable  situation  if  judges  of  courts  of  last 
resort  feel  that  they  cannot  decide  a  controversy  according  to  law  with- 
out losing  the  popular  favor  which  alone  insures  their  continuance  in 
office.  If  such  a  situation  confronts  a  judge,  let  us  hope  that  he  will 
conduct  himself  according  to  the  precepts  of  Marshall.  Every  one  of  us 
can  recall  instances  of  judges  who  have  so  conducted  themselves,  and 
who  have  been  made  martyrs  because  they  did  their  duty.  But  the 
people  have  no  right  to  subject  their  judges  to  any  such  strain,  and  if 
they  do,  it  is  to  be  feared  that  some  of  them  will  not  stand  the  test. 

It  often  happens  that  the  judge  who  fearlessly  performs  his  duty  in 
disregard  of  what  he  believes  to  be  the  will  of  his  constituents  finds  that 
he  has  increased  instead  of  diminished  his  popularity.  And  I  think,  too, 
that  it  sometimes  happens  that  the  judge  who  shamelessly  disregards  his 
duty  in  comjiliance  with  what  he  believes  to  be  the  will  of  his  constitu- 
ents finds  that  he  has  lost  instead  of  increased  his  popularity.  Each  of 
these  men  believed  he  was  making  the  supreme  sacrifice ;  one,  the 
sacrifice  of  his  life  to  preserve  his  honor ;  the  other,  the  sacrifice  of  his 
honor  to  preserve  his  life.  Happily  for  the  perpetuity  of  American 
institutions,  each  found  him.self  mistaken.  By  losing  his  life  for  the  .sake 
of  duty  the  one  found  it ;  by  saving  his  life  at  the  expense  of  duty  the 
other  lost  it.  These  experiences  prove,  as  nothing  else  can,  the  capacity 
of  the  American  peo|)lc  for  self-government.  There  is  an  obligation  on 
the  part  of  the  judge  to  decide  controversies  according  to  law.    There 


THE  JUDICIARY  1 43 

is  an  obligation  on  the  part  of  the  people  to  respect  him  for  the  per- 
formance of  his  duty.  In  general  it  may  be  said  that  the  people  will  keep 
the  faith. 

The  whole  duty  of  courts  of  last  resort,  then,  is  to  decide  the  contro- 
versies brought  before  them  according  to  law.  To  decide  a  controversy 
according  to  law,  the  court  must  perform  two  duties  :  first,  it  must  under- 
stand the  facts  so  that  the  real  issue  is  clearly  perceived  ;  second,  it  must 
find,  state,  and  apply  to  the  determination  of  that  issue  the  true  rule  of 
law.  There  is  a  possibility  of  the  court's  making  a  mistake  in  perform- 
ing each  of  these  duties.  The  consequences  are  more  serious  if  the  mis- 
take is  made  in  the  performance  of  the  latter  duty,  for  then  not  only  is 
an  erroneous  decision  made  in  the  particular  case,  but  a  precedent  is  set 
which  affects  the  rights  and  duties  of  every  one  in  the  state.  Judging 
from  my  limited  experience  as  a  member  of  a  court  of  last  resort,  the 
mistake  most  frequently  committed,  however,  is  a  failure  to  understand 
the  case, —  a.  misconception  of  the  controlling  issue,  resulting  not,  it  is  true, 
in  unsettling  the  law,  but  none  the  less  in  an  erroneous  decision.  This 
consequence  is,  however,  serious  enough,  for  I  imagine  it  would  afford 
little  consolation  to  a  defeated  suitor  to  be  told  that  the  erroneous  deci- 
sion which  denied  him  his  right  left  the  rights  of  his  neighbors  unimpaired. 

Whenever  an  erroneous  decision  pronounced  by  courts  of  last  resort 
arises  from  a  failure  to  understand  the  case,  the  office  of  the  argument 
of  counsel  has  not  been  performed,  for  whatever  else  that  argument  should 
do,  it  should  correctly  analyze  the  facts  and  clearly  point  out  the  control- 
ling issues.  I  think  practicing  lawyers  would  be  surprised  if  they  knew 
how  often  arguments  of  counsel  fail  to  perform  this  important  ser\'ice. 
I  am  willing  to  concede  that  the  reason  for  this  failure  is  sometimes  to 
be  found  in  the  inattention  of  the  judges  who  constitute  the  court.  It 
must  be  confessed  that  judges  sometimes  do  not  understand  the  argu- 
ment of  counsel  simply  because  they  do  not  give  it  proper  attention.  I 
think,  however,  that  it  may  be  said,  as  a  general  proposition,  that  the 
failure  of  courts  of  last  resort  to  understand  a  case  is  chargeable  to  the  im- 
perfect argument  of  counsel.  In  their  anxiety  to  achieve  a  victory  coun- 
sel yield  to  the  temptation  of  stating  the  facts  from  the  point  of  view- 
most  favorable  to  their  client's  interest.  Frequently  they  undertake  to 
state  their  case  in  such  a  way  as  to  appeal  to  the  supposed  sympathy  or 
prejudice  of  the  judges  and  to  blind  them  to  the  legal  questions  involved. 
More  often  they  bring  into  prominence  immaterial  facts  which  they  think 
disclose  equities  in  their  client's  favor.  They  place  an  undue  emphasis 
upon  certain  material  facts,  overlooking  other  essential  facts,  and  thus 
contend  for  a  decision  in  their  client's  favor  upon  an  issue  which  is  not 
the  true  issue  in  controversy.  In  all  such  cases  —  and  such  cases  are 
altogether  too  numerous  —  the  court  of  last  resort  must,  without  the  aid 
of  counsel,  discover  the  true  issue  and  the  principle  by  which  it  is  to  be 
decided.    It  is  not  surprising  that  the  court,  thus  compelled  to  perform 


144  AMERICAN  STATE  GOVERNMENT 

the  duty  of  both  judge  and  counsel,  should  sometimes  fail  to  perfonn 
one  or  the  other  —  perhaps  both  —  of  these  duties.  There  might  be 
some  justice  in  holding  that  counsel  who  improperly  place  the  court  in 
this  dilemma  is  estopped  from  making  any  complaint.  The  question 
arises,  What  can  be  done  to  remedy  this  grievance  ?  Of  course,  the  most 
obvious  remedy  is  open  to  counsel.  They  should  correct  their  practice. 
They  should  state  the  facts  clearly  and,  above  all,  fairly.  Instead  of  en- 
deavoring, as  many  of  them  do,  to  place  a  construction  upon  the  facts 
most  favorable  to  their  client's  interest,  they  should  do  their  utmost  to 
construe  them  as  they  should  be  construed  by  a  fair-minded  judge.  I  am 
aware  that  many  lawyers  will  say,  "  I  owe  a  duty  to  my  client  to  win  this 
controversy ;  that  duty  justifies  the  practice  you  condemn."  This  is  tak- 
ing too  narrow  a  view  of  our  profession  and  of  our  professional  obliga- 
tions. We  have  no  right  to  make  the  winning  of  suits  the  supreme 
object  of  our  professional  career.  We  should  be  faithful  to  every  duty  we 
owe  our  client,  but  we  should  never  forget  that  we  owe  duties  to  society 
and  to  ourselves.  These  latter  duties  are  paramount.  Our  client  has  a 
right  to  expect  that  we  will  do  all  that  an  honest  lawyer  can  to  win  his  con- 
troversy. He  has,  however,  no  right  to  ask  us  to  do  more.  If  his  suit 
cannot  be  won  by  honest  endeavor,  it  should  not  be  won  at  all.  We  have 
no  right  to  overstate  his  case,  we  have  no  right  to  misstate  his  case, 
because  we  have  no  right  to  try  to  deceive  the  court.  Nor  is  it  true  that 
the  practice  under  consideration  renders  valuable  service  to  our  clients. 
A  lawyer  is  not  serving  his  client  by  advancing  an  argument  based  on  a 
misconception  of  the  testimony,  —  an  argument  which  must  crumble  with 
the  foundation  upon  which  it  rests.  In  that  case  he  presents  no  argu- 
ment for  his  client.  He  neglects  his  client's  interests.  He  injures  rather 
than  benefits  him.  Indeed,  I  believe  it  may  be  said  generally  that  a 
lawyer  renders  his  client  most  efficient  service  when  he  serves  him  with 
an  enlightened  conscience.  I  think  it  may  also  be  said  that  their  lack  of 
fair-mindedness  explains  why  so  many  lawyers  of  the  greatest  ability  fail 
to  attain  the  highest  place  in  our  profession. 

I  think,  too,  that  the  judges  constituting  the  court  can  do  something 
to  remedy  this  evil.  If  they  can  prove  by  their  decisions  that  they  are 
never  misled  by  improper  statements,  they  will  do  much  to  discourage  it. 
There  is  no  doubt  that  they  are  sometimes  misled,  and  this  circumstance 
affords  the  only  adequate  explanation  for  the  fact  that  some  lawyers  of 
high  rank  persist  in  a  reprehciisil)Ie  practice. 

An  attentive  attitude  on  the  part  of  judges  will  do  much  to  encourage 
lawyers  to  make  fair  statements  and  proper  arguments.  Lawyers  will 
hesitate  to  make  erroneous  statements  to  watcliful,  attentive,  and  trustful 
judges.  When  a  lawyer  sees  that  he  is  receiving  the  undivided  attention 
of  an  intelligent,  honest,  fair-minded  judge,  he  will  endeavor  to  merit  the 
confidence  he  is  receiving.  Such  attention,  it  must  be  confessed,  he  does 
not  always  receive.    It  must  be  admitted  that  judges  sometimes  do  not 


THE  JUDICIARY  1 45 

closely  attend  to  the  arguments  that  are  addressed  to  them.   No  one  can 
justify  this,  but  there  is  some  excuse  for  it. 

While  most  of  the  arguments  addressed  to  a  court  afford  aid  in  reach- 
ing a  correct  decision,  it  cannot  be  said  that  all  of  them  do.  Sometimes 
those  arguments  —  so-called  arguments  —  are  mere  aggregation  of  words, 
emanating  from  the  mouth  of  a  lawyer  determined  to  use  every  minute 
of  the  time  given  him  by  the  rules  of  the  court.  The  judge  who  can 
sleep  in  the  daytime  is  to  be  envied  in  such  a  case.  He  can  escape 
what  his  wakeful  and  more  unfortunate  associate  must  endure.  It  is  un- 
necessary to  state  that  a  judge  is  not  attentive  to  such  an  argument.  If 
you  think  he  is,  you  are  deceived.  That,  however,  is  a  matter  of  little 
consequence,  for  nothing  could  be  gained  by  such  attention.  The  serious 
consequence  is  that  such  experiences  are,  if  often  repeated,  almost  cer- 
tain to  create  a  habit  of  inattention,  —  a  habit  that  may  persist  when 
arguments  should  be  listened  to  attentively.  It  is  not  true,  as  was  once 
said  by  a  waggish  friend  of  mine,  that  he  can  always  identify  a  member 
of  a  court  of  last  resort  by  the  vacant  expression  of  his  countenance.  If, 
however,  it  were  true,  the  experience  I  have  described  explains  if  it  does 
not  justify  it.  Of  course  we  will  all  agree  that  the  judges  should  correct 
their  habit  of  inattention  and  do  their  utmost  in  every  way  to  get  a  clear 
conception  of  the  issue  in  controversy.  They  then  reach  the  more  im- 
portant duty  of  declaring  the  law  which  controls  that  issue.  They  must 
bring  to  the  discharge  of  this  duty  all  the  highest  judicial  qualities,  —  in- 
tegrity, learning,  wisdom,  courage,  industry,  and,  above  all  else,  fair-mind- 
edness. Their  commission  from  the  people  authorizes  them  to  declare 
the  law  applicable  to  the  decision  of  the  controversy,  but  it  does  not 
authorize  them  to  declare  law  that  is  not  applicable  to  that  decision.  If 
they  do  that,  they  usurp  an  authority  that  has  never  been  given  them. 
The  successors  of  these  judges,  when  called  upon  to  decide  a  controversy 
in  which  the  supposed  principle  is  applicable,  possess  the  undoubted  and 
sole  authority  to  determine  its  correctness.  Moreover,  without  the  aid 
afforded  by  the  actual  controversy,  the  court  lacks  one  of  the  necessary 
elements  to  a  correct  determination  of  the  controlling  legal  principle. 
For,  by  its  application  to  an  actual  controversy,  the  justice  of  that  prin- 
ciple can  be  tested.  Though  this  test  is  not  the  only  one  which  should 
be  applied,  it  is  one  which  can  never  be  safely  omitted.  So  it  often  hap- 
pens that  when  judges  state  a  legal  principle  inapplicable  to  the  case 
under  consideration,  they  state  it  incorrectly.  It  may  be  said  that  this 
mistake  is  not  irremediable,  because  such  a  statement  is  not  a  precedent 
binding  on  the  court ;  the  court  having  entire  liberty  to  repudiate  it  upon 
the  ground  that  it  is  an  obiter  dictum.  But  I  am  persuaded  that  courts 
should  take  greater  care  than  they  do  to  guard  against  such  mistakes. 
Even  though  they  are  subsequently  corrected,  their  commission  tends  to 
weaken  public  confidence  in  the  courts  that  committed  them ;  and  the 
consequence  of  such  a  mistake  is  sometimes  disastrous.    The  reputation 


146  AMERICAN  STATE  GOVERNMENT 

of  Chief  Justice  Taney,  acquired  by  a  long  life  of  usefulness  and  fidelity, 
was  almost  destroyed  by  his  decision  in  the  celebrated  Dred  Scott  case. 
It  is  true  that  the  principles  of  that  decision  were  detested  by  a  majority 
of  Americans  and  they  believed  them  to  be  incorrect,  but  the  reputation 
of  this  eminent  jurist  would  not  have  seriously  suffered  had  they  not  been 
persuaded  that  these  principles  were  inapplicable  to  the  controversy 
under  consideration.  Faith  in  him  was  lost  because  it  was  believed  —  I 
think  erroneously  believed  —  that  he  took  advantage  of  his  position  to 
declare  a  law  which  he  had  no  authority  to  declare. 

The  question  arises,  \\' hat  is  this  law  by  which  controversies  are  to  be 
determined  ?  Part  of  that  law  is  in  writing  —  commands  made  by  the 
people  themselves  or  by  those  to  whom  they  have  delegated  authority 
to  make  laws.  As  to  this  part,  it  may  be  emphatically  stated,  the  law 
applied  by  the  court  is  the  law  made  by  the  people.  But  this  part  is  a 
very  small  part  indeed  of  the  law  applied  by  the  courts  in  determining 
controversies.  Nearly  all  the  law  so  applied  is  unwritten  law.  The  writ- 
ten law,  as  has  well  been  said,  is  only  "  the  fringe  upon  the  body  of  the 
law,"  and  after  its  consideration  we  have  not  answered  the  question. 
What  is  the  law  by  which  controversies  are  determined .'' 

Every  lawyer  should  read  and  reread  Mr.  James  C.  Carter's  excellent 
book,  entitled  "  Law,  Its  Origin,  Growth,  and  Functions."  That  book 
throws  great  light  on  the  question,  What  is  the  law,  and,  at  least,  mate- 
rially contributes  to  its  correct  answer.  Whoever  reads  that  book  intelli- 
gently and  diligently,  though  he  may  not  entirely  agree  with  Mr.  Carter, 
will,  I  believe,  be  convinced  that  the  law  applied  by  the  court  in  deter- 
mining controversies  is  the  same  law  which  regulates  human  conduct. 
The  ordinary  individual  in  his  everyday  affairs  regulates  his  conduct  by  the 
same  law  which  the  court  applies  in  determining  controversies.  The  man 
of  affairs  in  deciding  what  course  he  will  pursue  to  advance  his  own  inter- 
est and  at  the  same  time  to  avoid  injury  to  his  neighbor,  is  engaged  in  the 
same  process  that  the  court  is  engaged  in  when  it  determines  a  controversy 
involving  a  similar  question.  Each  is  making  a  decision  according  to  the  law 
which  regulates  human  conduct.  What  is  the  law  which  regulates  human 
conduct .'  That  is  a  question  which  I  do  not  believe  the  wisest  man  in  the 
world  can  correctly  answer.  That  is  the  question  the  courts  are  constantly 
striving  to  answer,  but  which  they  have  not  yet  answered.  W'hile  we  know 
some  of  the  principles  of  this  law,  we  do  not  know  all  of  them,  —  perhaps  • 
we  do  not  know  its  fundamental  jjrinciple.  We  can  say,  however,  that  it  is 
the  law  by  which  a  people  advance  from  the  lowest  and  most  degraded 
savagery  to  the  highest  civilization,  —  to  a  civilization  higher  and  more 
splendid  than  to-day  is  dreamed  of.  Who  made  this  law .'  Certainly  the 
courts  did  not  make  it.  No  one  ever  consciously  made  it.  "  It  is,"  says  Mr. 
Carter,  "  the  form  in  which  human  conduct  —  that  is,  human  life  —  pre- 
sents itself  under  the  necessary  o];)erations  of  the  causes  which  govern  con- 
duct."   It  is,  I  add,  in  the  highest  sense  the  people's  law.   Courts  of  last 


THE  JUDICIARY  I47 

resort  alone  possess  official  authority  to  declare  this  law.  They  possess  that 
authority  because  the  people  have  given  it  to  them.  They  declare  it,  as 
has  heretofore  been  stated,  by  applying  it  in  deciding  a  controversy. 
This  declaration  is  not  the  law,  but  it  is  considered  the  highest  and  best 
evidence  of  the  law.  We  call  it  a  precedent.  It  is  considered  the  best 
evidence  of  the  law  because  it  is  ascertained  by  the  best  method  human 
ingenuity  has  been  able  to  devise.  If  the  law  so  declared  is  correctly 
declared,  that  is,  if  it  really  is  a  rule  which  regulates  human  conduct, 
the  court  of  last  resort  has  rendered  a  most  beneficent  service,  for  it  is 
,  of  the  utmost  importance  that  the  people  should  know  the  law  which 
regulates  their  conduct,  —  the  law  by  which  they  advance  toward  a  higher 
civilization.  As  by  knowing  the  law  of  health  people  preserve  and  pro- 
long their  lives,  so,  by  knowing  the  law  which  regulates  their  conduct, 
they  make  more  certain  and  speedier  progress  toward  their  destined  — 
their  glorious  —  end. 

This  knowledge  will  contribute  to  our  material,  moral,  and  also,  I 
believe,  to  our  spiritual  upliftment. 

Heretofore  I  endeavored  to  emphasize  the  truth,  that  faith  that  courts 
will  determine  controversies  according  to  law  is  the  foundation  of  Ameri- 
can government.  I  now  emphasize  a  truth  far  more  important.  Upon 
this  same  faith  must  rest,  in  part  at  least,  our  hope  of  advancing 
toward  a  higher  civilization,  —  our  hope  of  making  material,  moral,  and 
spiritual  progress. 

But  what  if  courts  do  not  determine  controversies  according  to  law  ? 
Suppose  that  instead  of  correctly  declaring  the  law,  they  declare  it  incor- 
rectly ;  suppose  they  make  a  mistake  in  declaring  the  rule  which  regu- 
lates human  conduct,  and  that  human  conduct,  instead  of  being  regulated 
by  the  rule  declared,  is  regulated  by  an  opposing  rule .-'  Human  conduct 
will,  in  that  case,  be  regulated  by  its  own  law  and  not  by  the  declaration 
of  the  court.  And  this  decision  must  sooner  or  later  —  the  sooner  the 
better  —  be  repudiated  by  the  courts.  Fortunately  the  court,  by  declar- 
ing an  incorrect  rule,  does  not  materially  retard  human  progress,  because, 
as  already  said,  our  conduct  will  be  regulated  by  its  own  law  and  not  by 
the  rule  incorrectly  declared.  By  declaring  an  incorrect  rule  the  court 
merely  misses  an  opportunity  of  advancing  human  progress.  Judges 
sometimes  take  themselves  too  seriously.  They  fear  they  will  change 
the  law  if  they  incorrectly  declare  it.  Of  course  they  should  take  every 
care  to  correctly  declare  it.  But  if  a  collision  occurs  between  their 
declaration  and  the  law,  the  law  does  not  suffer ;  they  suffer. 

If  any  one  can  prove  that  the  law  declared  in  a  judicial  decision  is  not 
in  harmony  with  human  conduct,  he  should  not  keep  silent.  While  it  is 
the  duty  of  every  one  to  uphold  the  judge  who  decides  a  case  according 
to  law,  it  is  equally  the  duty  of  every  one  to  criticize  a  decision  which  is 
not  according  to  law.  But  the  extent  or  severity  of  this  criticism  does 
not  afford  the  test  of  the  correctness  of  the  law  so  declared.    That  test 


148  AMERICAN   STATE  GOVERNMENT 

is  afforded  not  by  the  voice  of  the  people  but  by  their  conduct.  The 
test  is  not  whether  the  rule  is  popular  or  unpopular,  but  whether  human 
conduct  is  in  fact  regulated  by  it.  If,  by  acting  in  accordance  with  this 
rule,  we  advance  toward  a  higher  civilization,  it  is  the  law.  That  is  the 
test.    If  it  does  not  stand  this  test,  it  is  not  the  law. 

There  are  two  sources  from  which  courts  of  last  resort  get  the  law 
which  controls  conduct,  —  the  law  by  which  they  determine  controversies. 
One  of  these  sources  is  (to  quote  from  Mr.  Carter),  "  a  study  of  con- 
duct and  consequence,"  and  by  applying  in  this  study  principles  of 
reasoning  approved  by  the  common  judgment  of  mankind.  This  is  the 
source  from  which  individuals  get  the  law  by  which  they  determine  their 
conduct.  When  a  judge  gets  his  law  from  this  source  he  is  said  to  be 
deciding  a  case  on  principle,  or  according  to  the  rule  of  common  sense. 
The  other  source  from  which  a  court  of  last  resort  gets  the  law  is  from 
decisions  made  by  itself  or  by  other  courts  of  last  resort.  When  the  law 
is  taken  from  this  source,  a  court  is  said  to  be  deciding  a  case  upon 
precedent.    It  is  unsafe  for  a  judge  to  neglect  either  of  these  sources. 

The  judge  who  deduces  his  law  entirely  from  precedent  —  who,  in 
other  words,  is  a  slave  to  precedent  —  is  the  most  inefficient  of  judges. 
He  will  delay  the  decision  of  the  most  unimportant  question  until  he 
finds  a  case  in  point.  Having  no  vision  of  the  fundamental  principles 
of  the  law,  he  is  almost  certain  to  ridiculously  misapply  the  precedent  and 
thus  reach  a  decision  erroneous  and  often  absurd. 

On  the  other  hand,  the  judge  who  never  looks  at  authorities,  who  has 
—  as  he  often  says  —  a  contempt  for  precedents,  but  who  possesses  a 
vigorous  intelligence  and  sound  understanding  and  decides  all  cases  ac- 
cording to  the  rule  of  common  sense,  will  decide  the  great  majority  of 
them  correctly,  but  some  of  them  he  will  decide  incorrectly.  He  will  de- 
cide the  majority  of  these  cases  correctly  because  they  arc  simple  cases 
controlled  by  some  principle  of  elementary  law.  He  will  decide  others 
incorrectly  because  they  are  not  simple  and  because  they  are  controlled 
by  a  principle  of  law  which  can  be  discovered  only  by  the  aid  of  great 
wisdom  and  extraordinary  powers  of  reasoning. 

This  wisdom  and  this  power  of  reasoning  were  possessed  by  many  of 
the  great  judges  and  used  by  them  in  making  their  decisions.  The  judge 
who  decides  difficult  cases  without  examining  these  decisions  refuses  to 
look  at  the  light.  He  refuses  to  get  his  law  from  the  best  source.  By 
implication  he  asserts  his  superiority  to  all  these  great  judges  who  have 
gone  before  him.  He  would  be  convinced,  if  he  studied  their  decisions, 
that  their  unilrd  wisdom  exceeded  his. 

The  truth  is,  that  to  decide  the  law  with  even  approximate  accuracy,  a 
judge  must  be  neither  a  slave  nor  an  enemy  of  precedent.  He  must  be 
a  master  of  precedent,  and  he  must  also  he  a  diligi-nl  student  of  human 
conduct  and  its  consequences,  possessing  a  logical  mind,  able  to  reason 
correctly. 


THE  JUDICIARY  149 

The  decisions  of  courts  of  last  resort  must,  at  least,  according  to  our 
American  notions,  be  in  written  form.  This  is  done  for  the  double  pur- 
pose of  insuring  accuracy  — •  for  writing  is  a  great  aid  to  exactness  — 
and  also  that  the  world  may  know  the  rule  of  law  declared  and  applied. 
Extraordinary  care  should  be  used  in  the  preparation  of  these  opinions. 
They  should  contain  a  statement  of  the  facts  essential  to  a  clear  under- 
standing of  the  issue  involved.  Every  other  fact  should  be  omitted. 
They  should  contain  a  clear  statement  of  the  rule  of  law  applied  to  the 
controversy,  and  they  should  contain  nothing  else. 

It  is  a  mistake  to  attempt  to  discuss  every  proposition  urged  by  coun- 
sel ;  if  the  proposition  is  manifestly  frivolous,  if  it  is  based  upon  an 
erroneous  conception  of  the  record,  or  if  it  is  answered  by  elementary 
principles  of  law,  the  opinion  is  disfigured  by  its  consideration.  Its  dis- 
cussion tends  to  conceal  other  and  possibly  important  principles  decided. 
Opinions  should  be  appropriate  to  the  case.  If  there  is  involved  no  im- 
portant principle,  no  opportunity  is  presented  for  a  great  opinion,  and 
judges  make  a  great  mistake  if  they  attempt  to  write  one.  My  limited 
experience  as  a  member  of  a  court  of  last  resort  convinces  me  that  the 
great  majority  of  cases  present  no  important  question.  Many  of  them 
are  chancery  cases  where  the  controlling  issue  depends  upon  the  credi- 
bility of  witnesses.  In  such  cases  I  think  the  court  does  its  full  duty 
when  it  contents  itself  with  the  statement  that  it  gives  credit  to  certain 
testimony.  I  think  it  is  a  mistake  to  undertake  to  state  why  that  credit 
is  given.  In  many  cases  the  only  issue  presented  is  determined  by  a  con- 
struction of  the  record.  In  those  cases  all  that  the  opinion  can  do  is  to 
state  its  proper  construction.  Many  other  cases  are  determined  by  the 
application  of  principles  of  elementary  law,  about  which  there  is  not  the 
slightest  question.  I  doubt  if  it  is  wise  to  publish  any  of  these  opinions 
in  the  report. 

Courts  should  not  be  unduly  solicitous  to  write  opinions  that  will  be 
convincing.  Arguments  designed  to  convince  are  often  selected  from 
considerations  of  a  temporary  and  transitory  nature.  They  are  out  of 
place  in  a  record  designed  to  be  permanent.  And  though  these  argu- 
ments silence  adverse  criticism  and  make  the  opinion  popular,  they  have 
little  tendency  to  establish  its  correctness.  Its  correctness,  as  I  have  here- 
tofore endeavored  to  prove,  is  to  be  tested  by  its  application  to  human 
conduct. 

Seldom  is  the  judge  of  a  court  of  last  resort  given  the  opportunity  to 
write  a  great  opinion.  This  is  most  fortunate.  That  opportunity  may 
come,  however,  and  if  it  comes,  it  comes  unheralded.  It  may  be  found 
that  in  some  meager  record,  poorly  briefed,  there  is  presented  for  deci- 
sion an  issue  which  requires  the  declaration  and  application  of  a  rule  of 
law  never  before  discovered.  It  may  be  in  a  case  which  must  be  decided 
without  precedent ;  it  may  be  in  a  case  which  must  be  decided  in  opposi- 
tion to  all  precedent.   No  judge  should  crave  such  a  task  ;  no  judge  should 


150  AMERICAN   STATE  GOVERNMENT 

shrink  from  the  responsibility  of  performing  it.  If  it  comes,  he  should 
pray  that  he  may  be  equal  to  his  opportunity ;  that  he  may  contribute 
to  the  advancement  of  humanity  by  correctly  declaring  the  law. 

THE  PRACTICAL  WORKING  OF  THE  APPEAL  SYSTEM  ^ 

By  Henry  T.  Lummus 

The  traditional  function  of  the  criminal  courts  is  to  punish  infractions 
of  the  criminal  law,  not  much,  if  at  all,  as  a  measure  of  retribution  to 
the  offender  for  his  sins,  but  rather  as  an  example  and  a  warning  to 
deter  the  particular  criminal  and  other  possible  criminals  from  similar 
offenses.  It  is  generally  conceded  that  the  good  effect  of  punishment  is 
measured  by  its  speed  and  certainty,  not  by  its  severity.  While  a  remote 
or  merely  possible  punishment  has  little  deterrent  effect,  few  persons, 
unless  professional  criminals,  indulge  in  crime  where  there  is  a  practical 
certainty  of  a  moderate  but  speedy  punishment  upon  detection.  The 
law  should  act  as  speedily  as  is  consistent  with  a  fair  preparation 
and  trial. 

Perhaps  the  foregoing  statement  of  the  purposes  of  criminal  justice 
requires  modification,  in  view  of  the  modern  use  of  suspended  sentences 
and  probation.  The  interests  of  the  individual  defendant  and  his  family 
are  not  to  be  forgotten  in  the  desire  to  make  an  example  to  the  com- 
munity. An  opportunity  for  reformation  without  punishment  may  convert 
a  possible  public  charge  into  a  good  citizen.  In  many  cases,  immediate 
punishment  would  involve  a  hardshij:)  upon  the  defendant  or  his  family, 
out  of  proportion  to  its  value  as  a  deterrent  to  him  or  to  others.  In 
such  a  situation  the  case  may  be  filed,  or  the  defendant  may  be  placed 
on  probation,  with  or  without  a  requirement  that  he  pay  a  fine  during 
the  probation  period,  or  a  sentence  may  be  imposed  and  its  execution 
suspended  on  condition  that  the  defendant  shall  be  of  good  behavior. 
But  it  is  essential  to  the  efficacy  of  such  lenient  measures  that  the  action 
of  the  law  be  especially  swift  and  certain  in  case  the  defendant  construes 
leniency  as  weakness  and  shows  his  contempt  for  the  law  by  further 
violations  of  it.  The  necessity  of  promptness,  certainty,  and  finality  in 
our  criminal  practice  is  increased,  rather  than  diminished,  by  the  growing 
use  of  probation.  Unless  there  lies  behind  probation  the  power  of  the 
law,  ready  to  vindicate  its  authority  by  speedy,  certain,  and  final  action 
in  the  court  that  granted  the  leniency,  the  probation  system  rapidly 
degenerates  into  a  feeble  sentimentalism. 

The  lower  courts  arc  exix-ctcd  to  perform  two  duties  in  the  adminis- 
tration of  criminal  law.  'I'lieir  first  duty  is  to  conduct  the  preliminary 
investigation    in   cases   of   murder,    robbery,   and   other    .serious   crimes 

I  From  a  pamphlet  on  "  The  Failure  of  the  Appeal  System,"  published  by  the  Massa- 
chusetts Prison  Association,  1909. 


THE  JUDICIARY  151 

beyond  their  jurisdiction,  to  determine  whether  there  is  probable  cause 
to  hold  the  defendants  to  await  the  action  of  the  grand  jury,  and  to  fix 
the  bail  when  probable  cause  is  found.  That  function  they  are  able  to 
perform  with  general  satisfaction. 

Their  second  duty  is  to  relieve  the  superior  court  of  the  trial  of  the 
less  important,  but  still  important,  criminal  cases,  leaving  to  the  superior 
court  the  weightier  affairs  that  are  fully  enough  to  occupy  the  undivided 
attention  of  that  court.  In  the  exercise  of  that  function  the  lower  courts 
are  supposed  to  have  great  influence  in  the  community,  and  by  their 
action  to  produce  order  and  inspire  respect  for  law.  The  right  of  appeal, 
in  theory,  exists  for  the  purpose  of  giving  relief  in  those  exceptional 
cases  in  which  the  defendant  is  convinced  that  the  lower  court  has  erred  ; 
and  in  such  exceptional  cases  the  superior  court  is  supposed  speedily  to 
reconsider  the  case  and  to  render  the  judgment  that  the  lower  court 
ought  to  have  rendered. 

It  certainly  is  true  that  the  lower  courts  come  into  closer  and  more 
frequent  contact  with  the  mass  of  the  people  than  do  the  higher  courts ; 
and  if  the  purpose  of  the  criminal  and  civil  laws  is  to  be  brought  home 
to  the  mass  of  the  people  in  such  a  way  as  to  teach  the  great  lessons  of 
respect  for  law  and  obedience  to  law  that  are  essential  to  the  welfare  of 
the  state,  it  must  be  done  in  the  lower  courts.  We  have  at  the  present 
time,  especially  in  our  manufacturing  cities  and  towns,  not  only  our 
English-speaking  population,  with  its  lawless  element,  but  also  a  vast 
army  of  foreigners,  many  of  them  industrious  and  law-abiding,  but  con- 
taining among  them  some  of  the  scum  of  Europe  and  Asia.  The  lawless 
element  know  of  the  superior  court  as  the  tribunal  to  which  their  associ- 
ates fly  for  refuge  when  sentenced  in  the  lower  court ;  some  of  them 
may  have  been  to  the  superior  court  on  appeal,  with  more  or  less  suc- 
cess. But  the  tribunal  whose  doings  they  actually  see  and  hear  about 
every  day,  whose  deeds  are  chronicled  in  the  local  newspapers  and  form 
the  subject  of  daily  gossip,  is  the  local  lower  court.  To  the  mass  of 
people  the  administration  of  the  law  in  the  lower  courts  typifies  the 
administration  of  the  law  in  general.  The  only  glimpse  of  the  judicial 
power  of  the  state  that  they  commonly  get  is  the  one  they  get  in  their 
own  community  through  the  action  of  their  own  lower  court.  If  that 
glimpse  shows  the  judicial  power  to  be  feeble,  slow,  uncertain,  and  liable 
to  be  halted  and  rendered  impotent  at  the  will  of  any  person  interested, 
it  is  not  surprising  that  many  people  find  it  hard  to  believe  that  the  state 
has  anywhere  any  efficient  force  for  compelling  the  performance  of  public 
or  private  duty,  or  that  the  mandates  of  the  public,  acting  through  the 
legislature,  are  entitled  to  any  respect  or  obedience. 

It  is  easy  to  see  that  the  lower  courts  might  be  powerful  agencies  for 
law  and  order.  The  President-elect  in  a  recent  speech  has  called  atten- 
tion to  the  public  importance  of  the  courts  having  jurisdiction  over  small 
cases,  both  criminal  and  civil,  and  to  the  necessity  of  taking  measures 


152  AMERICAN   STATE  GOVERNMENT 

to  induce  lawyers  of  real  judicial  ability  to  preside  over  such  tribunals.^ 
But  the  question  is  open  in  Massachusetts,  whether  under  the  present 
system  the  lower  courts  can  possibly  perform  the  duties  for  which  they 
were  intended,  or  fill  the  place  in  the  judicial  system  that  they  are  com- 
monly supposed  to  occupy. 

The  number  of  criminal  appeals  from  the  lower  courts  is  very  great.^ 
The  appeal  must  be  taken,  under  the  law,  when  the  sentence  is  pro- 
nounced, and  unless  the  sentence  is  a  small  fine  the  defendant  naturally 
seizes  the  opportunity  to  make  void  the  action  of  the  court,  hoping  that 
some  chance  in  the  higher  court  may  turn  out  to  his  advantage.  If  he 
had  to  select  his  tribunal  before  trial,  he  might  prefer  to  be  tried  or 
sentenced  by  the  lower  court  rather  than  by  a  jury  or  by  any  other 
court ;  but  having  the  right  to  appeal  after  knowledge  of  the  adverse 
decision,  —  and  it  makes  no  difference  how  correct  and  just  that  decision 
was,  or  that  the  defendant  pleaded  guilty,  —  he  naturally  avails  himself 
of  it.  Even  though  he  were  certain  ultimately  to  pay  the  penalty,  he 
would  nevertheless  appeal  from  any  considerable  sentence  of  imprison- 
ment, merely  to  put  off  the  evil  day,  just  as  defendants  sentenced  in 
the  superior  court  regularly  went  up  on  frivolous  and  hopeless  bills  of 
exceptions  until  St.  1895,  Chapter  469  (R.  L.,  Chapter  220,  Section  3),  put 
a  stop  to  that  practice  by  providing  for  the  execution  of  sentences  not- 
withstanding exceptions.  By  that  statute  the  legislature  put  an  end  to  a 
great  evil,  which,  however,  caused  nothing  worse  than  delay;  the  system 
of  appeals  from  lower  courts,  which  still  remains,  contains  what  seem  to 
be  much  greater  evils. 

The  history  of  the  ordinary  appeal  case  shows  the  defects  in  the  pres- 
ent system.  The  case  is  not  tried  in  the  lower  court  until  the  defendant 
is  ready  and  has  his  case  fully  prepared.  Upon  a  full  trial  before  the 
judge  in  the  lower  court  the  defendant  requires  the  judge  to  apply  the 
doctrine  as  to  the  burden  of  proof  in  criminal  cases,  and  to  discharge 
the  defendant  if  there  is  any  reasonable  doubt.  If  the  judge  fails  to  find 
the  defendant  guilty,  the  defendant  can  never  be  prosecuted  again,  even 
though  the  decision  is  grossly  erroneous.  If,  however,  the  defendant  is 
convicted,  he  then  seeks  to  have  the  judge  place  the  case  on  file,  or  put 
him  on  probation,  or,  at  the  worst,  impose  a  small  fine.  If  probation  or 
filing  is  the  result,  the  defendant  may  not  immediately  ai:)pcal,  although 
if  jilaced  on  probation  he  may  violate  every  condition  of  his  probation 
and  then  appeal  whenever  it  is  sought  to  sentence  him  for  such  violation  ; 
and  if  the  case  is  filed,  the  defendant  may  commit  every  known  kind  of 

1  See  Grceii  Hac;,  .September,  1908. 

2  'J"he  volume  and  increase  of  the  appeal  business  in  the  superior  court  is  shown  by  the 
following  table  of  criminal  cases  in  that  court  for  the  commonwealth. 

Indictment  Cases  Appeal  Cases 
Year  ending  October  I,  1906       .     .     .              2550  4913 

Year  ending  October  I,  1907       .     .     .  2649  $034 

Year  ending  (Jctobcr  I,  1908       .     .     .  3371  6237 


THE  JUDICIARY  I  53 

misconduct,  and  yet  the  lower  court  cannot  take  the  case  from  the  files 
and  impose  any  effectual  punishment.  Whatever  the  judge  does,  how- 
ever, the  government  cannot  appeal.  He  may  refuse  to  punish  the  most 
flagrant  offense  within  his  jurisdiction,  and  the  public  have  no  rights ; 
but  he  cannot  impose  a  fine  of  one  cent  upon  a  self-confessed  criminal 
without  the  liability  to  an  appeal.  He  is  deemed  worthy  to  be  trusted 
with  all  the  rights  of  the  public,  but  with  none  of  the  rights  of  the 
defendant. 

If  the  lower  court  imposes  a  penalty  upon  the  defendant,  the  defend- 
ant then  appeals  and  gives  bail.  If  all  the  criminal  cases,  original  and 
appellate,  in  the  superior  court  were  to  be  tried,  the  number  of  justices 
would  have  to  be  increased  in  order  to  give  the  district  attorneys  adequate 
time  to  dispose  of  the  mass  of  criminal  business  in  that  court.  Even  if  a 
district  attorney  is  proof  against  political  and  personal  pressure,  he  has 
to  recognize  the  necessity  of  getting  through  with  his  business.  A  crim- 
inal case  that  has  to  be  continued  for  one  term  is  likely  to  be  lost  when 
the  next  lot  of  new  cases  comes  up ;  a  second  continuance  is  equivalent 
to  an  acquittal.  The  cases  coming  from  the  lower  courts  on  appeal, 
though  important  to  the  peace  and  good  order  of  the  community,  are 
overshadowed  by  the  murders,  robberies,  burglaries,  and  other  cases 
begun  by  indictment ;  and  naturally  the  appeal  cases  are  the  ones  that 
have  to  be  disposed  of,  if  possible,  without  taking  time  for  trial.  Many 
of  them  are  nol-prossed,  or  continued,  or  left  on  the  docket  without 
action,  or  a  plea  of  guilty  is  taken  and  by  agreement  the  minimum  pen- 
alty is  imposed.  If,  however,  the  district  attorney  insists  upon  a  real  and 
effective  punishment,  the  defendant  makes  his  fourth  attempt  to  escape 
by  means  of  a  verdict  of  the  jury.  He  has  already  had  a  full  trial  in  the 
lower  court,  but  he  now  asks  a  second  tribunal,  the  jur)%  to  acquit  him 
if  it  can  find  any  reasonable  doubt  of  his  guilt.  Sometimes  a  defend- 
ant found  not  guilty  in  the  lower  court  of  one  of  two  inconsistent  charges, 
in  a  doubtful  case,  secures  his  acquittal  on  the  other  charge  in  the  supe- 
rior court  by  showing  that  he  was  really  guilty  of  the  charge  upon  which 
he  was  found  not  guilty  below.  If  he  is  convicted  by  the  jury,  he  appeals 
no  further  on  the  facts,  not  because  he  is  any  better  pleased  with  his  trial 
in  the  superior  court  than  he  was  with  his  trial  below,  but  simply  because 
the  law  does  not  give  him  another  appeal.  But  he  has  one  more  chance, 
to  say  nothing  of  the  possibility  of  exceptions.  Despite  the  fact  that  the 
lower  court  has  already  sifted  its  cases  and  placed  many  of  them  on  file 
or  on  probation,  the  defendant  now  asks  the  superior  court  to  sift  again 
the  cases  that  have  come  up  on  appeal,  and  to  file  his  case,  or  put  him 
on  probation,  or,  at  the  worst,  to  impose  some  small  penalty. 

The  system  of  appeals  reminds  one  of  the  habit  of  small  boys,  who, 
after  trying  some  dispute  by  the  toss  of  a  coin,  and  losing  the  toss,  cry 
"  Twice  out  of  three  !  "  But  that  simile  does  not  tell  the  whole  story. 
The  system  is  more  like  one  of  those  marble  games,  consisting  of  an 


154  AMERICAN   STATE  GOVERNMENT 

inclined  plane  with  five  holes,  in  that  the  government's  case  may  drop 
out  at  any  of  the  five  holes,  and  can  reach  the  goal  of  sentence  and 
punishment  only  by  great  good  fortune  at  every  hole. 

Is  it  any  wonder  that  lawyers  tell  their  clients,  after  an  adverse  decision 
or  sentence  in  the  lower  court,  that  the  sentence  of  the  lower  court  is  of 
no  consequence,  but  that  everything  will  be  made  right  by  an  appeal? 
Is  it  any  wonder  that  appeals  increase,  and  that  no  one  accepts  a  sentence 
of  imprisonment  in  the  lower  court  if  he  can  get  bail  ?  There  is  a  com- 
mon idea  that  a  poor  man  must  accept  the  sentence  of  the  lower  court 
because  he  cannot  get  bail ;  though  it  would  be  a  strange  argument  for 
the  appeal  system  that  it  compels  the  poor  to  suffer  penalties  that  the 
well-to-do  can  escape  at  will.  But  experience  shows  that  comparatively 
few  appeals  are  prevented  by  the  inability  of  the  defendant  to  procure 
bail.  Where  the  defendant  has  family  or  other  associations  in  the  local- 
ity, the  theory  of  bail  requires  that  the  amount  should  not  be  very 
large;  and  it  is  a  very  destitute  and  unfortunate  man  who,  with  the  aid 
of  his  friends  and  professional  bondsmen,  and  with  the  fee  system  pre- 
vailing among  bailing  magistrates,  cannot  obtain  the  moderate  bail 
required  in  appeal  cases.  Some  unlucky  human  derelict,  drifting  from 
place  to  place,  or  some  common  drunkard  without  money  or  friends, 
may  accept  a  sentence  to  jail  or  to  the  state  farm,  imposed  more  as  a 
kindness  than  as  a  punishment ;  but  a  sentence  of  imprisonment,  or  even 
of  a  considerable  fine,  for  a  real  offense  against  the  peace  and  order  of 
the  community  is  usually  annulled  by  a  prompt  appeal.  The  main  result 
of  the  constant  extension  of  the  jurisdiction  of  the  lower  courts  is  that 
they  pretend  to  deal  with  a  greater  variety  of  matters.  The  only  way  in 
which  the  lower  courts  can  reduce  the  number  of  appeals  is  by  constant 
and  outrageous  error  in  favor  of  criminals. 

Any  one  who  supposes  that  this  weakness  of  the  lower  courts  is  not 
known  to  the  criminal  classes,  even  to  the  merely  disorderly  amateurs  in 
crime,  very  much  underestimates  their  intelligence.  If  the  decisions  and 
sentences  of  the  lower  courts  cannot  be  placed  upon  any  firmer  footing, 
it  would  seem  much  better  to  take  away  altogether  their  power  to  decide 
and  sentence,  and  make  them  merely  holding  magistrates,  to  bind 
defendants  over  to  some  court  deemed  competent  to  determine  the 
case.  The  spectacle  of  a  solemn  trial,  ending  in  a  conviction  and  sen- 
tence, turned  into  a  mockery,  not  because  of  any  error  in  the  proceed- 
ings, but  merely  because  a  party  arbitrarily  chooses  not  to  abide  by  the 
result,  is  what  brings  the  lower  courts  and  their  authority  into  contempt, 
and  breeds  a  contempt  for  law  in  general. 

I  would  not  be  understood  as  arguing  that  a  defendant  in  a  criminal 
case,  or  a  party  in  any  case,  should  be  deprived  of  the  right  to  a  jury 
trial  if  he  wishes  it.  But  in  many  criminal  ca.ses  the  defendant  would 
as  willingly  try  his  case  before  a  judge  as  before  a  jury ;  in  some  cases  a 
judge  would  protect  his  legal  rights  much  more  carefully  and  technically 


THE  JUDICIARY  1 55 

than  any  jury.  If  the  defendant  wishes  a  jury  trial,  he  ought  to  have 
it,  either  in  the  court  of  first  instance  or  in  a  higher  court.  But  if  he 
sees  fit  to  go  to  trial  on  the  merits  before  a  court  without  a  jury,  he 
ought,  it  seems,  to  abide  by  the  result,  unless  that  result  was  arrived  at 
by  some  error  of  law.  I  am  convinced  that  if  there  could  be  but  one 
trial  of  a  criminal  case,  and  that  a  speedy  and  final  one,  the  penalties 
now  commonly  imposed  could  be  reduced  considerably  without  any 
injurious  effect  upon  the  peace  and  order  of  the  community.  There 
seems  to  be  no  reason  why  a  man  should  have  two  trials  and  more  than 
two  chances  in  two  courts  in  a  case  of  simple  assault,  even  where  he 
pleads  guilty  and  the  sentence  is  a  small  fine,  while  he  may  be  impris- 
oned for  thirty  years  for  rape  or  robbery  by  a  single  justice  of  the 
superior  court  after  one  trial. 

The  appeal  system  in  civil  cases,  though  to  my  mind  not  such  a 
crying  evil  as  in  criminal  cases,  is  nevertheless  in  great  need  of  reform, 
for  much  the  same  reasons.  Among  lawyers,  however,  the  need  of 
reform  in  civil  cases  is  more  commonly  recognized,  for  the  obvious 
reason  that  in  civil  cases  the  appeal  system  often  injures  their  clients 
directly,  while  in  criminal  cases  it  often  aids  their  clients  and  injures 
only  the  unrepresented  and  unprotected  public.  For  forty  years,  at  least, 
the  need  of  speedy  and  final  determination  of  small  civil  cases  has  been 
recognized,  and  various  futile  expedients  have  been  tried  to  secure  it. 
For  example,  see  St.  1852,  Chapter  314;  St.  1870,  Chapter  201,  Section 
7  ;  R.  L.,  Chapter  160,  Section  42  ;  Chapter  203,  Section  3  ;  Chapter  157, 
Section  25.  Article  XI  of  the  Massachusetts  Declaration  of  Rights  says, 
"  Every  subject  of  the  commonwealth  .  .  .  ought  to  obtain  right  and 
justice  .  .  .  promptly  and  without  delay."  However  accustomed  we  may 
be  to  the  past  or  present  delays  in  our  legal  procedure,  it  must  be  con- 
sidered that  any  delay  in  the  settlement  of  civil  controversies  and  the 
enforcement  of  civil  obligations,  beyond  a  fair  time  for  preparation  and 
trial,  is  not  only  a  denial  of  the  rights  guaranteed  by  the  constitution, 
but  also  a  practical  injustice  leading  to  disrespect  for  civil  obligations  and 
for  the  law  itself.  Many  eminent  authorities  consider  that  prompt  hear- 
ings with  speedy  and  final  decisions,  even  though  occasionally  wrong, 
produce  better  justice  on  the  whole  than  slow  and  wearisome  appeals 
and  delays,  even  though  the  final  decisions  be  those  of  an  Eldon. 

The  number  of  civil  appeals  is  very  large. -^  Of  course  there  are  a 
good  many  judgments  obtained  by  default  and  many  of  these  are  not 
appealed  from  ;  but  in  general  these  are  in  cases  where  the  defendant  is 
worthless,  and  the  plaintiff  is  wasting  his  money  in  pursuing  him.  There 
are  also  poor-debtor  proceedings  and  cases  of  equitable  process,  to 
collect  a  judgment  already  obtained  in  any  one  of  the  courts  of  the  state, 

1  From  October  15,  1903,  to  October  15,  1904,  out  of  uSji  civil  cases  actually  tried  in  the 
municipal  court  of  the  city  of  Boston,  815,  or  more  than  44  per  cent,  went  up  on  appeal, — 
an  average  of  68  per  month,  to  say  nothing  of  cases  defaulted  at  the  trial  and  appealed. 


156  AMERICAN   STATE  GOVERNMENT 

and  in  such  proceedings  no  appeal  lies.  In  a  few  cases  the  plaintiff  or 
the  defendant  may  be  convinced  that  he  has  no  case,  and  may  be  satis- 
fied to  abandon  or  settle  the  action.  But  a  defendant  who  finds  he  has 
no  defense  often  appeals  for  spite  or  other  reason,  and  claims  a  jur)' 
trial  in  the  superior  court,  merely  to  delay  the  final  judgment  for  one  or 
two  or  three  years,  as  he  may  do  in  the  present  state  of  the  dockets  of 
the  superior  court.  Coming  now  to  the  cases  where  there  is  a  real  con- 
troversy, it  is  only  in  the  very  smallest  cases  that  the  decision  of  the 
lower  court  is  suffered  to  remain  in  force,  and  the  theoretical  jurisdiction 
of  the  lower  courts  up  to  one  thousand  dollars  dwindles  in  practice  to 
something  nearer  ten  dollars.  Appeals  in  ten-dollar  cases,  even,  are  not 
uncommon.  The  number  of  appeals  does  not  seem  to  bear  any  relation 
to  the  confidence  that  the  bar  have  in  the  court.  The  judge  may  be  one 
to  whom  the  bar  commonly  refer  superior-court  cases  involving  thou- 
sands of  dollars  as  master  or  referee,  with  practically  final  authority ; 
but  when  the  judge  sits  in  the  lower  court,  the  losing  party  appeals  just 
the  same,  not  because  he  believes  that  he  has  not  had  a  fair  trial,  but 
because  the  law  gives  him  another  chance.  In  controverted  cases  the 
trial  in  the  lower  court  is  only  a  dress  rehearsal,  resulting  merely  in  the 
disclosure  of  the  exact  evidence, —  a  result  which,  in  the  law  of  interrog- 
atories, is  deemed  to  be  against  public  policy,  as  tending  to  create  perjury 
at  a  subsequent  trial  (R.L., Chapter  173,  Section  63;  Wigram,  Discovery, 
I  St  Am.  ed.,  263).  Apart  from  that  result,  the  trial  in  the  lower  court,  and 
the  consideration  and  determination  of  the  case  by  that  court,  is  simply 
so  much  wasted  time  and  energy  on  the  part  of  every  one.  A  poor 
man,  who,  after  a  full  trial,  has  succeeded  in  winning  his  case  in  the  lower 
court,  and  who  can  ill  afford  the  expense  of  witnesses  and  counsel  for 
another  trial,  can  hardly  be  blamed  for  considering  it  the  "  wrong  "  of 
appeal  rather  than  the  "  right "  of  appeal,  when  he  finds  his  victory 
made  fruitless,  not  for  any  error  in  the  decision,  but  merely  at  the  whim 
of  his  opponent.^ 

In  the  early  days  when  the  appeal  system  was  created  there  were 
some  reasons  for  permitting  decisions  of  justices  of  the  peace  to  be  made 
void  at  the  will  of  either  party,  that  do  not  exist  under  our  present  system 
of  lower  courts ;  but  the  inertia  of  conservatism  has  hitherto  prevented 
a  change  in  the  law.  In  the  early  days  the  time  of  magistrates,  lawyers, 
parties,  and  witnesses  was  not  very  valuable.  The  higher  courts  were  not 
then  overcrowded  with  the  mass  of  business  that  the  complexity  of  mod- 
ern life  has  since  developed.   Until  St.  1857,  Chapter  267  (R.  L.,  Chapter 

1  Many  people  who  give  the  subject  hasty  consideration  regard  the  system  of  appeals, 
by  which  a  suit  can  be  brought  in  a  justice-of-the-peace  court  and  carried  through  the  other 
courts  to  the  supreme  court,  as  the  acme  of  human  wisdom.  ...  In  truth,  there  is  nothing 
wiiich  is  so  detrimental  to  the  interests  of  the  poor  man  as  the  right  which,  if  given  to  him, 
must  be  given  to  the  other  and  wealthier  party,  of  carrying  the  litigation  to  the  court  of  last 
resort,  which  generally  means  two,  three,  and  four  years  of  litigation.  .  .  .  Kvcry  change  of 
procedure  that  limits  the  right  of  appeal  works  for  the  benefit,  in  the  end,  of  the  poor 
litigant. —  Hon.  W.  II.  'I'.ift,  in    drni!  /iir^,  ScplcmhLT,  1908. 


THE  JUDICIARY  157 

173,  Sections  56-74)  the  idea  of  a  final  trial  of  fact  without  a  jury  in  a 
common-law  action  in  any  court  was  unknown,  and  the  appeal  system 
was  considered  a  constitutional  necessity.  Most  of  the  justices  of  the 
peace  and  some  of  the  former  justices  of  the  lower  courts  were  not  lawyers, 
did  not  know  any  law,  and  were  not  expected  to.  But  these  conditions  have 
changed.  The  justices  of  the  peace,  paid  by  fees,  have  been  almost  en- 
tirely supplanted  by  an  elaborate  system  of  police,  district,  and  municipal 
courts ;  and  unless  the  decisions  of  these  courts  are  to  be  given  some 
effect  in  determining  litigation,  the  considerable  sums  paid  by  the  coun- 
ties for  their  maintenance  are,  in  great  part,  wasted  money.  If  a  man  is 
fitted  to  exercise  judicial  functions  at  all,  he  is  fitted  to  exercise  a  larger 
measure  of  them  than  is  permitted  to  a  justice  of  a  lower  court  under 
the  present  law.  If  the  lower  courts,  in  general,  are  deemed  unworthy 
of  any  more  effective  jurisdiction,  that  affords  an  incontrovertible  argu- 
ment for  their  immediate  reconstruction,  but  no  argument  at  all  for  the 
continuance  of  the  appeal  system.  The  fact  is,  I  believe,  that  all  the 
justices  of  the  lower  courts  at  the  present  time  are  trained  lawyers,  and 
many  of  them  are  lawyers  of  recognized  ability  and  high  standing.  It 
would  surely  tend  still  further  to  improve  the  lower  courts,  if  presiding 
in  them  were  made  a  real  exercise  of  the  judicial  function,  instead  of  a 
likely  or  even  probable  waste  of  time ;  and  this  would  be  especially  true 
if  provision  were  made  for  exceptions,  so  that  a  justice  of  a  lower  court 
would  act  under  the  stimulus  of  responsibility  for  his  rulings  in  matters 
of  law. 

For  the  law  to  permit  a  party  to  have  a  complete  trial  in  a  small  case 
in  the  lower  court,  and  then  at  will  to  wipe  out  the  result  and  have  a 
second  complete  trial  in  another  court  before  a  jury, —  to  say  nothing  of 
the  fact  that  the  second  trial  may  take  place  before  a  single  judge  without 
a  jury, —  seems  just  as  wasteful  and  absurd  as  to  permit  an  appeal  in  a 
larger  case  from  a  justice  of  the  superior  court  to  a  jury.  If  there  were 
any  sound  policy  in  having  two  trials  of  the  same  case,  one  would  expect 
to  find  two  trials  possible  in  the  most  important  and  intricate  cases.  In- 
stead of  that,  a  party  to  a  controversy  involving  a  hundred  thousand 
dollars  must  stake  his  rights  upon  the  result  of  a  single  trial,  perhaps 
before  a  single  judge ;  but  he  has  the  fortune  or  misfortune,  as  the  case 
may  be,  to  get  into  the  ponderous  and  costly  machinery  of  an  appeal  and 
two  trials,  at  the  public  expense,  if  his  case  happens  to  involve  a  ten- 
dollar  grocery  bill.  Now  that  the  superior  court  is  overcrowded  with 
important  cases,  and  its  work  is  two  or  three  years  behind,  it  seems  a 
waste  of  public  money,  and  an  abuse  of  the  rights  of  parties  and  of  the 
public,  not  to  let  the  lower  courts  do  the  work  for  which  they  are 
intended. 


158  AMERICAN   STATE  GOVERNMENT 

POLITICS  AND  THE  JUDICIARY  ^ 
By  William  R.  Smith 

Justice  cannot  be  administered  with  perfection  so  long  as  human  nature 
is  imperfect.  The  system  adopted  in  arriving  at  a  just  conclusion  when 
personal  or  property  rights  are  involved  in  a  proceeding  before  our  courts 
has  been  built  up  after  many  centuries,  and  improved  with  the  added 
experience  of  lawyers,  legislators,  and  judges  who,  from  year  to  year,  have 
noted  and  corrected  deficiencies  and  imperfections  in  the  processes  em- 
ployed for  the  enforcement  of  rights  and  the  redress  of  wrongs.  We,  at 
this  time,  no  less  than  those  who  have  preceded,  are  employed  in  the 
same  work,  to  the  end  that  truth  may  be  discovered  and  not  suppressed. 
The  efforts  of  any  man  who  expects  to  contribute  anything  to  the  estab- 
lishment of  justice  must  be  devoted  to  the  sole  object  of  securing  more  effi- 
cient ways  and  means  of  determining  the  very  truth  of  the  case.  Courts 
exist  and  lawyers  strive  that  the  light  of  truth  may  illuminate  the  path  of 
justice ;  that  falsehood  may  be  revealed,  and  error  avoided. 

Since  we  can  only  approximate  to  an  exact  ascertainment  of  legal 
rights,  owing  to  the  fallibility  of  human  nature,  it  is  incumbent  on  us  to 
reduce  to  the  lowest  degree  those  instances  where  justice  fails. 

The  judges  of  the  country  are  drawn  from  the  members  of  the  bar. 
The  lawyer  drifts  easily  into  politics  from  the  fact  that  his  training  fits 
him  to  consider  and  discuss  public  questions,  and  laymen,  in  large  part, 
are  influenced  greatly  by  his  judgment  expressed  in  matters  pertain- 
ing to  the  public  welfare,  especially  when  it  is  affected  by  legislative 
enactments  or  the  decisions  of  courts. 

I  am  not  one  of  those  who  look  with  a  sort  of  .superstitious  awe  on  an 
occupant  of  the  bench.  I  have  never  thought  that  the  step  from  the 
plane  where  lawyers  stand  to  the  altitude  where  judges  sit,  adds  one 
cubit  to  the  intellectual  stature  of  the  man  or  ipso  facto  increases  his 
knowledge  of  the  law.  If  he  has  partisan  prejudices  as  a  lawyer,  their 
sharp  and  cutting  corners  may  be  worn  off  to  some  extent  by  long  judicial 
service,  but  their  identity  is  never  wholly  obliterated.  As  the  twig  is  bent 
at  the  bar,  the  tree  is  apt  to  be  inclined  on  the  bench. 

In  the  trial  of  political  causes  the  honest  judge  will  strive  to  .shake  off 
party  bias  and  view  the  controversy  from  a  purely  nonpartisan  stand- 
point. When  a  conclusion  is  reached  he  gives  judgment  with  a  satisfied 
conscience,  convinced  in  his  own  mind  that  the  result  came  liy  an  adher- 
ence to  strict  rules  of  law  only,  uninlluenced  by  any  jMcdilection  favor- 
able to  the  party  to  which  he  belongs,  or  prejudices  against  that  party 
whose  principles  he  combated  while  at  the  bar.  If  such  abnegation 
existed  in  fact,  the  ideal  would  be  reached. 

The  frailty  of  human  nature,  however,  is  a  factor  in  the  administration 

1  President's  annual  address  before  the  Bar  Association  of  Kansas,  1905. 


THE  JUDICIARY  I  59 

of  justice  which  many  persons  do  not  appreciate  in  their  reverent  respect 
for  the  courts.  The  lawyer  who  deals  constantly  with  human  passions, 
prejudices,  and  ambitions  knows  that  the  judgment  of  men  is  influenced 
and  warped  (unconsciously  often)  by  their  surroundings  as  well  as  by 
their  successes  and  defeats  in  the  battle  of  life. 

To  reduce  to  a  minimum  a  possible  miscarriage  of  justice  in  cases 
where  political  rights  of  parties  are  involved,  I  shall  make  some  sugges- 
tions which  may  be  impracticable,  but  if  they  shall  tend  to  render  the 
slightest  service  in  the  direction  mentioned,  I  shall  feel  amply  repaid  for 
my  feeble  efforts  in  that  behalf. 

It  must  be  remembered  that  when  lawsuits  of  a  political  nature  come 
before  the  courts,  in  a  great  majority  of  cases  they  affect  the  ambitions  of 
men  in  their  aspirations  for  political  preferment.  Monetary  considerations 
arising  from  the  compensation  of  the  office  are  of  secondary  importance. 
A  judgment  may  take  from  a  man  his  farm  with  less  disappointment  to 
him  than  the  failure  to  get  an  office  which  pays  no  more  in  a  year  than 
the  annual  rental  of  the  land  he  has  lost.  Back  of  the  candidate  stand 
his  adherents,  who  can  see  no  equity  in  the  claims  of  his  opponent.  An 
intense  feeling  of  hostility  arises  between  the  parties,  which  is  manifest 
in  every  stage  of  the  proceedings.  If  the  litigants  are  of  opposite  parties, 
a  decision  resulting  in  the  success  of  the  one  whose  political  faith  accords 
with  those  of  the  judge,  or  with  a  majority  of  the  court  having  several 
members,  is  received  by  the  defeated  party  with  a  feeling  that  the  pure 
principles  of  right  have  not  been  applied  with  that  judicial  indifference  to 
results  with  which  the  courts  determine  ordinary  questions  of  contract  or 
of  tort. 

That  the  great  Chief  Justice  Marshall  was  subject  to  early  political 
environment,  in  his  professional  and  political  life,  affecting  his  views  on 
great  constitutional  questions,  it  would  be  irreverent  for  any  of  us  to 
assert.  In  a  life  of  the  distinguished  jurist,  found  in  the  American  States- 
men Series,  the  writer  says  : 

He  made  Federalist  law  in  nine  cases  out  of  ten,  and  made  it  in  strong, 
stately  fashion.  A  Republican  judge,  however,  would  have  brought  about  a 
very  different  result,  which,  as  we  believe,  would  have  been  vastly  less  service- 
able to  the  people,  but  of  which  the  workmanship,  in  a  strictly  professional  and 
technical  view,  might  have  been  equally  correct. 

Judges  can  never  be  convinced  that  they  are  not  open-minded,  color- 
less, and  without  influencing  impressions  when  political  controversies 
arise  for  determination.  It  must  be  conceded  that  in  comparison  with 
laymen  they  are  infinitely  less  subject  to  partisan  prejudices,  because  legal 
and  judicial  training  induces  conservatism  and  a  disposition  to  hear  both 
sides  of  a  question  before  reaching  a  conclusion.  It  is  the  element  of 
unconscious  bias,  however,  with  which  we  must  reckon,  for  it  is  ever 
present  and  steals  upon  the  judgment  unawares. 


l6o  AMERICAN  STATE  GOVERNMENT 

In  the  late  case  of  Commonwealth  vs.  Caleb  Powers,  convicted  of 
participation  in  the  killing  of  Governor  Goebel,  in  which,  for  the  third 
time,  a  conviction  of  murder  in  the  first  degree  was  set  aside  by  the  Ken- 
tucky court  of  appeals,  the  highest  tribunal  in  that  state,  Mr.  Justice 
Barker  uses  the  following  forcible  language : 

The  administration  of  even-handed  justice  has  no  more  insidious  enemy  than 
political  prejudice ;  it  enters  unseen  and  unsuspected  into  the  human  mind, 
corrodes  the  reason,  and  undermines  the  judgment ;  neither  purity  of  heart  nor 
exaltation  of  character  affords  an  antidote  foi  this  deadly  poison  ;  indeed,  these 
virtues  may  well  magnify  the  evil,  for  the  mind  thus  possessed  is  all  the  more 
ready  to  enforce  the  oblique  judgment  when  it  has  no  cause  to  suspect  its  own 
integrity. 

Richard  Harris,  K.C.,  an  eminent  English  barrister,  in  a  note  to  the 
"  Reminiscences  of  Sir  Henry  Hawkins,"  which  he  edited,  says  :  "  I  have 
studied  judges  all  my  professional  life,  and  am  certain  that  the  less  reli- 
gious or  political  sentiment  imparted  to  the  bench,  the  better  it  is  for  the 
interests  of  justice." 

It  is  the  suspicion  of  partisan  bias  more  than  its  actual  existence  which 
tends  to  affect  public  confidence  in  the  courts.  In  this  republic  a  tribunal 
engaged  in  the  administration  of  justice  must  both  merit  and  possess  the 
faith  of  the  people  .to  sustain  it  in  power  and  respect.  I  do  not  mean  by 
this  that  public  clamor  should  have  the  slightest  effect  on  judicial  actions, 
for  courts  often  accomplish  their  best  work  in  protecting  the  people 
against  themselves. 

Under  our  Australian-ballot  system  the  number  of  political  cases  has 
been  many  times  increased.  The  later  reports  are  full  of  decisions  re- 
specting the  preparation  and  counting  of  ballots  and  the  rights  of  candi- 
dates to  have  their  names  go  before  the  voters.  The  supreme  court 
and  district  courts  also  in  this  state  are  appealed  to  before  every  general 
election  to  decide  controversies  arising  under  the  ballot  law  in  which  can- 
didates for  office  arc  interested.  Contests  after  election  arc  not  infre- 
quent, often  presenting  difficult  questions  of  fact  whether  an  elector 
intended  to  vote  for  one  man  or  another.  These  cases  are  important  be- 
cause they  affect  the  integrity  of  the  elective  system,  the  freedom  of  the 
voter  in  casting  a  secret  ballot,  and  government  by  the  majority,  which 
is  the  foundation  of  our  political  system. 

I  am  not  making  an  argument  in  favor  of  the  disfranchisement  of 
judges,  nor  do  I  complain  of  their  participation  in  party  affairs  to  the 
extent  of  expressing  their  political  sentiments  at  the  polls.  Ikyond  this 
the  individual  judge  must  decide  for  himself  how  far  he  should  go.  I  am 
convinced,  however,  that  most  of  them  —  in  fact,  a  very  large  majority  — ■ 
endeavor  to  avoid  suspicion  of  partisanship  by  a  modest  exercise  of  their 
political  rights,  free  from  criticism  of  men  and  measures  of  opposing 
parties,  and  without  any  unseemly  display  of  enthusiasm  in  defense  of 
their  own. 


THE  JUDICIARY  l6l 

It  is  gratifying  to  be  able  to  say  that  within  my  recollection  of  the  per- 
sonnel of  the  supreme  court  of  Kansas,  extending  back  for  thirty  years, 
none  of  its  members,  with  possibly  one  exception,  and  of  that  I  am  not 
sure,  has  ever  taken  part  in  political  campaigns  by  making  party  speeches 
or  been  conspicuous  in  support  of  the  principles  of  the  party  to  which 
he  belonged. 

As  we  cannot  hope  to  secure  a  judiciary  wholly  indifferent  politically, 
would  it  not  increase  and  maintain  public  faith  in  the  courts  if  both  of 
the  great  parties  were  represented  on  the  bench  ?  Does  the  supreme 
court  of  Arkansas  administer  justice  better  because  its  judges  are  all 
Democrats,  or  the  supreme  court  of  Kansas  more  accurately  apply  the 
law  because  its  members  are  all  Republicans  ?  What  lawyer  inquires  or 
cares  whether  a  Republican  or  Democrat  wrote  "  Greenleaf  on  Evidence  " 
or  "  Parsons  on  Contracts"?  What  judge  takes  thought  of  the  political 
belief  of  a  lawyer  who  is  making  a  convincing  argument  at  the  bar  ? 

Why  exalt  politics  over  religion  in  determining  judicial  qualifications  ? 
We  choose  a  fanatical  Baptist  for  the  bench  without  question  because  he 
belongs  to  our  party,  and  defeat  a  fanatical  Democrat  because  he  does  n't. 
Is  one  better  than  the  other  ? 

In  the  state  of  New  York  since  1884  the  bar,  supported  by  the  people, 
have  succeeded  in  making  political  creed  an  indifferent  consideration  in 
the  choice  of  judges  for  the  highest  judicial  tribunal,  namely  the  court  of 
appeals.  In  1884  the  terms  of  office  of  Judge  Rapalo,  a  Democrat,  and 
Judge  Andrews,  a  Republican,  expired.  The  Republican  and  Democratic 
state  committees  agreed  that  both  should  be  nominated,  which  was  done, 
and  both  elected  by  a  nearly  unanimous  vote.  In  1892  both  political 
parties  nominated  Judge  Andrews  for  chief  judge  and  he  was  elected 
without  opposition.  In  1895  the  constitution  was  amended,  and  it  was 
provided  that  whenever  the  judges  of  the  court  of  appeals  certified  to 
the  necessity,  the  governor  should  designate  not  exceeding  four  justices 
of  the  supreme  court  to  sit  in  the  court  of  appeals  until  the  number  of 
pending  cases  was  reduced  to  one  hundred  and  fifty,  with  the  provision 
that  no  more  than  seven  judges  should  sit  in  any  one  case.  Governor 
Roosevelt  designated  two  Republicans  and  one  Democrat. 

In  igo2  the  term  of  Judge  Gray,  a  Democrat,  expired.  The  Demo- 
crats nominated  him  for  reelection,  and  the  Republicans  chose  Judge 
Wernor  to  oppose  him.  There  was  a  strong  feeling  among  members  of 
the  bar  that  Judge  Gray,  having  served  acceptably  for  fifteen  years,  should 
not  be  defeated  for  political  reasons.  I'he  election  resulted  in  the  election 
of  Judge  Gray  by  about  ten  thousand  plurality,  while  Governor  Odell,  a 
Republican,  was  elected  by  about  the  same  majority. 

In  1904,  when  Chief  Judge  Alton  B.  Parker  resigned,  after  his  nomi- 
nation for  President,  the  leading  Republicans  of  the  state  thought  it  would 
be  unfair  to  take  advantage  of  the  occasion  to  put  a  member  of  their 
party  at  the  head  of  the  court  of  appeals.    Judge  Cullen,  a  Democrat, 


1 62  AMERICAN   STATE  GOVERNMENT 

who  had  served  acceptably  on  the  supreme  bench  and  in  the  court  of 
appeals,  was  first  nominated  by  the  Republicans  and  then  by  the  Demo- 
crats for  the  office  of  chief  judge,  and  elected  without  opposition  by  an 
almost  unanimous  vote.  At  the  same  time  Judge  Wernor,  a  Republican, 
was  nominated  for  the  court  of  appeals  by  both  parties,  and  elected 
without  opposition. 

Supreme-court  judges  have  been  elected  generally  in  New  York  for 
political  reasons.  In  1884,  however,  in  the  seventh  judicial  district  with 
an  overwhelming  Republican  majority,  two  Democrats  were  elected  against 
the  Republican  nominees.  In  1902,  in  the  fifth  district,  the  Republican 
attorney-general,  who  was  the  regular  nominee  of  his  party  for  supreme 
justice,  was  beaten  by  about  ten  thousand  majority  when  the  district,  at 
the  same  time,  had  that  much  Republican  majority.  During  the  adminis- 
tration of  Governor  Hill,  he  on  several  occasions  appointed  Republicans 
in  Republican  districts  to  fill  vacancies,  who  were  afterwards  elected  at 
the  polls. 

In  1895,  when  Governor  Morton  was  called  on  to  designate  justices 
of  the  supreme  court  to  sit  in  the  appellate  division  in  the  second  de- 
partment, he  made  the  court  Democratic  by  selecting  four  old,  experi- 
enced Democratic  justices.  In  1902  Governor  Odell,  when  he  had  the 
opportunity,  refused  to  make  the  appellate  division  of  the  supreme 
court,  with  all  its  patronage.  Republican.  He  refused  to  "■  turn  down  " 
the  presiding  justice  who  had  held  the  office  for  many  years. 

In  Maine  the  supreme  court  consists  of  eight  justices.  It  has  been 
the  practice  for  many  years  past  to  have  one  Democrat  on  the  bench. 

In  New  Jersey  the  judges  are  appointed  by  the  governor  with  the 
concurrence  of  the  Senate.  In  the  higher  courts  the  term  of  office  is 
seven  years.  As  the  politics  of  New  Jersey  vibrated  forty  to  sixty  years 
ago  from  one  party  to  the  other,  both  parties  had  a  representation  in  the 
higher  courts.  From  1869  to  1895  the  governors  were  all  Democrats. 
About  thirty  years  ago  the  Democratic  governors  began  to  appoint  Re- 
publicans to  the  supreme  court,  and  for  many  years  three  of  the  nine 
judges  were  Republicans.  In  later  years,  when  the  Republicans  had  a 
majority  in  the  Senate,  the  Republican  representation  in  the  supreme 
court  was  increased  to  four.  Since  the  Republicans  have  been  in  power 
it  has  been  the  uniform  practice  to  keep  the  court  five  to  four  in  favor 
of  the  Republicans.  This  proportion  will  be  continued  probably  indefi- 
nitely. Judge  Depue,  a  Republican,  was  reappointed  four  times  by  a 
Democratic  governor.  The  chancellor  of  New  Jersey  has  always  belonged 
to  the  same  |)artv  as  the  governor  who  a])pointed  him.  The  chancellor 
has  the  apj joint ment  of  the  vice  chancellors,  and  generally  they  have  been 
of  both  political  parties. 

In  Pennsylvania  there  was  much  partisanship  shown  in  the  election  of 
judges  until  the  new  constitution  of  1874.  In  that  constitution  it  was 
provided  that  when  two  judges  were  to  be  elected  to  the  supreme  court, 


THE  JUDICIARY  1 63 

no  elector  should  vote  for  more  than  one  justice.  This  constitution  in- 
creased the  number  of  judges  by  two,  and  so  a  Democrat  and  Republican 
were  elected.  In  1888,  when  the  conventions  of  the  two  political  parties 
met,  there  was  a  vacancy  to  be  filled  in  the  office  of  justice  of  the  supreme 
court,  by  the  expiration  of  the  term  of  office  of  one  of  its  members. 
Both  parties  made  nominations.  There  was  no  prospect  or  expectation 
that  a  Democrat  would  be  elected,  but  before  the  election  a  justice  of  the 
supreme  court  died,  within  time  to  have  the  vacancy  filled  by  election, 
so  both  the  Democratic  and  Republican  nominees  were  elected.  In  1899, 
by  reason  of  death,  there  was  a  Democrat  and  a  Republican  elected  at  the 
same  election.  In  1904  the  governor  of  Pennsylvania  appointed  a  Demo- 
crat to  fill  the  vacancy  caused  by  the  death  of  the  chief  justice  of  the 
supreme  court. 

The  supreme  court  of  Pennsylvania  is  now  composed  of  six  Repub- 
lican justices  and  one  Democratic  justice.  Whenever  it  shall  happen  by 
death  or  resignation  hereafter  that  two  justices  are  to  be  elected,  the 
minority  can  elect  one  member  of  the  court. 

In  Delaware  the  judges  and  chancellor  are  appointed  by  the  governor 
for  life.  Formerly  they  were  of  the  same  political  party  as  the  governor, 
but  in  1897,  when  the  new  constitution  was  adopted,  a  Democratic  gov- 
ernor made  the  superior  court  to  consist  of  three  Democrats  and  two 
Republicans. 

In  New  Hampshire  the  supreme  court  was  increased  to  seven  mem- 
bers in  1877,  with  the  understanding  that  one  of  the  justices  appointed 
should  be  a  Democrat,  which  was  done.  When  the  Republican  chief 
justice  died  in  1898,  the  Republicans  complimented  a  Democratic  justice 
who  had  held  office  since  1877  by  appointing  him  chief  justice.  He 
held  the  office  only  about  eighty  days,  when  he  reached  the  constitutional 
age  of  retirement  (seventy  years).  The  governor  then  appointed  another 
Democrat  as  chief  justice. 

In  1 90 1  the  legislature  proposed  to  change  the  judiciary  system  for 
the  purpose  of  having  an  independent  supreme  court  whose  judges 
should  not  try  cases  in  the  first  instance.  It  therefore  created  two  new 
courts  :  a  supreme  court  consisting  of  a  chief  justice  and  four  associates, 
which  court  was  to  have  appellate  jurisdiction  only ;  and  a  superior  court 
(a  court  of  original  jurisdiction)  with  the  same  number  of  justices  as  the 
supreme  court.  On  the  passage  of  this  law  the  Republican  governor  re- 
appointed the  Democratic  chief  justice  to  be  chief  justice  of  the  new 
supreme  court.  He  also  appointed  as  associates  one  Republican  and 
one  Democratic  member  of  the  old  supreme  court  and  two  new  men 
who  were  Republicans.  For  the  superior  court  he  appointed  the  four 
remaining  justices  of  the  old  supreme  court  and  one  prominent  Demo- 
cratic politician.  We  thus  see  that  from  1877  to  1901  the  supreme 
court  of  New  Hampshire  consisted  of  four  Republicans  and  three  Dem- 
ocrats.    Since  April,   1901,  the  supreme  court  has  consisted  of  three 


1 64  AMERICAN  STATE  GOVERNMENT 

Republicans  and  two  Democrats,  and  the  superior  court  also  consists 
of  three  Republicans  and  two  Democrats.  In  making  all  appointments 
this  composition  of  the  two  courts  has  been  preserved.  It  may  be  re- 
marked that  in  New  Hampshire  all  judges,  by  the  constitution,  hold  office 
for  life  or  until  seventy  years  of  age.  In  Vermont  the  judges,  generally 
speaking,  have  belonged  to  the  dominant  political  party.  They  are  now 
chosen  biennially  by  the  legislature.  There  are  a  few  exceptions  to  this, 
however.  Isaac  S.  Redfield,  a  Democrat,  was  elected  chief  justice  or 
assistant  judge  for  twenty-five  years,  from  1835  to  i860.  At  his  last 
election  there  was  but  one  vote  against  him.  He  is  said  to  have  declared 
that  if  there  was  one  member  of  the  Vermont  legislature  who  thought  he 
was  unfit  for  the  office  of  chief  justice,  he  did  not  wish  to  be  chief  justice 
any  longer.    Of  late  years  the  court  has  been  unanimously  Republican. 

In  Indiana  the  party  that  has  carried  the  state  has  always  elected  the 
justice  of  the  supreme  court  of  that  party.  In  1893,  when  a  Democratic 
legislature  created  an  appellate  court  of  five  members,  the  Republican 
governor  appointed  two  Democrats  as  members  of  this  court.  For  the 
last  eight  years  the  supreme  court  and  the  appellate  court  have  been 
unanimously  Republican. 

In  the  early  history  of  Illinois  judges  were  appointed  by  the  governor 
and  belonged  to  his  party.  In  1842  the  legislature  abolished  the  supreme 
court,  and  a  new  court  composed  entirely  of  Democrats  was  appointed. 
The  constitution  of  1848  created  a  supreme  court  composed  of  three 
justices,  to  be  elected  by  districts.  The  Democrats  controlled  the  court 
unanimously  until  1864,  when  Judge  Lawrence,  a  Republican,  was 
elected.  The  new  constitution  of  1870  increased  the  court  to  seven 
members.  At  the  election  held  for  judges  under  this  constitution  two 
Republicans  were  elected.  The  court  consisted  of  four  Democrats  and 
three  Republicans.  In  the  Chicago  district,  which  was  Republican,  the 
Republican  president  of  the  constitutional  convention  was  defeated  by  a 
Democrat  as  judge  of  the  supreme  court.  Although  the  Republicans  had 
elected  the  governor  of  the  state  for  thirty-six  years,  during  nearly  all 
that  time  the  Democrats  had  a  majority  of  the  justices  of  the  supreme 
court.    In  1888,  however,  the  Republicans  obtained  a  majority. 

In  1873  the  Chicago  newspapers  defeated  Judge  Lawrence  for  reelec- 
tion because  he  had  fined  a  Chicago  newspaper  publisher  for  contempt 
for  criticizing  the  court  for  delay  in  trying  Chicago  murder  cases  pending 
before  it.  Judge  Lawrence's  successor,  a  Democrat,  was  twice  reelected 
in  a  strongly  Republican  district.  The  Republican  member  from  the 
Chicago  district  was  reelected  without  opposition.  The  court  now  con- 
sists of  four  Republicans  and  three  Democrats. 

Up  to  1877  the  supreme  court  of  Wisconsin  was  elected  on  party 
lines.  In  1874,  at  the  time  of  the  railroad  excitement,  Edward  G.  Ryan 
was  elected  chief  justice.  He  was  a  very  able  man  and  a  strong  Demo- 
crat.   He  defeated  Chief  Justice  Luther  S.  1  )ixon,  who  had  then  been 


THE  JUDICIARY  1 65 

justice  fifteen  years  and  was  regarded  as  one  of  the  ablest  judges  in  the 
West.  In  1877  a  constitutional  amendment  was  adopted  increasing  the 
number  of  justices  from  three  to  five.  In  the  election  in  April,  1878, 
David  Taylor,  a  Republican,  and  Harlow  S.  Orton,  a  Democrat,  were 
elected  as  the  new  justices.  This  seems  to  have  been  agreed  on  by  both 
parties.  On  the  death  of  Chief  Justice  Ryan  in  1880  a  Republican  was 
elected.  In  April,  1891,  David  Taylor  died  and  the  Democratic  governor 
appointed  John  B.  Winslow,  a  Democrat,  to  fill  the  vacancy.  He  was 
elected  by  the  people,  and  in  1895  was  reelected  by  a  majority  of  nine 
thousand  over  his  Republican  opponent.  In  1893  Silas  U.  Pinney  was 
appointed  by  a  Democratic  governor  to  fill  a  vacancy.  This  made  the 
court  consist  of  three  Democrats  and  two  Republicans.  On  the  death  of 
Chief  Justice  Orton  in  1895  the  governor  appointed  Roujet  D.  Martin,  a 
Republican,  to  fill  the  vacancy.  Then  the  court  consisted  of  three  Repub- 
licans and  two  Democrats.  Justice  Pinney  resigned  in  1898,  and  a 
Republican  governor  appointed  Joshua  E.  Dodge  to  fill  the  vacancy. 
Dodge  was  a  Democrat  and  was  elected  by  the  people.  Since  1895  the 
court  has  consisted  of  three  Republicans  and  two  Democrats.  The  practice 
seems  now  to  be  fixed  and  settled  that  the  majority  party  shall  have  three 
members  of  the  court,  the  other  two  being  conceded  to  the  minority. 

Although  Minnesota  is  a  Republican  state,  the  Democrats  for  the  last 
twelve  or  fifteen  years  have  had  one  or  more  members  in  the  court. 

In  the  Southern  States  the  supreme  courts  are  composed  of  Demo- 
crats. There  is  one  Republican  member  of  the  highest  court  in  each  of 
the  states  of  Maryland,  North  Carolina,  Kentucky,  and  Missouri. 

In  a  letter  written  recently  by  a  lawyer  in  Davenport,  Iowa,  he  states 
the  method  adopted  in  one  of  the  judicial  districts  of  that  state  for  the 
selection  of  judges.    It  is  relevant  to  the  purpose  of  this  paper.    He  says : 

Years  ago  Judge  John  F.  Dillon,  now  of  New  York  City,  began  his  judicial 
career  by  an  election  to  the  office  of  district  judge  here  in  Davenport.  He  was 
so  successful  and  able  that  when  his  term  expired  the  members  of  the  bar  of 
this  district,  regardless  of  politics,  indorsed  him  for  reelection,  and  I  think  no 
candidate  was  nominated  against  him,  and,  further,  that  Judge  Dillon  was  a 
Republican  in  a  then  strong  Democratic  district.  Now  the  above  all  occurred  so 
many  years  ago  it  is  legendary  ;  but,  nevertheless,  from  that  beginning  and  from 
that  time  the  seventh  judicial  district  of  Iowa  has  always  had  a  "  nonpartisan  " 
judiciary.  The  lawyers  of  each  county  in  the  district  meet  in  convention  to 
elect  delegates  to  a  District  Bar  Convention.  This  latter  nominates  the  candi- 
dates, and  the  political  parties  either  indorse  the  nomination  or  else  pass  them. 
When  a  vacancy  occurs,  the  bar,  in  the  same  manner,  suggests  to  the  governor 
the  successor,  and  so  far  that  official  has  always  appointed  the  choice  of  the  bar, 

A  district  chairman  and  secretary  and  committee  is  chosen,  as  is  done  by  the 
political  parties.  Only  those  licensed  to  practice  law  are  entidcd  to  vote  in  the 
conventions. 

We  have  four  judges  now,  —  three  Republicans  and  one  Democrat.  For  years 
we  had  three  Democrats  and  one  Republican.    Formerly  we  had  only  one  judge. 


1 66  AMERICAN   STATE  GOVERNMENT 

For  years  the  district  was  Republican,  with  a  Democrat  judge,  and  then  for 
years  it  was  the  other  way.  Along  in  1887  or  1888  the  Democrat  vote  was  six 
thousand  or  eight  thousand  above  the  Republican  vote,  and  the  former  party 
made  nominations  against  the  nonpartisan  candidates.  But  the  latter  were 
elected.    This  is  the  first  and  last  time  it  has  been  tried. 

As  to  the  manner  of  selection,  convention,  and  procedure  at  present,  what  I 
have  stated  I  know,  of  course,  to  be  true.  But  as  to  the  history  of  the  custom, 
all  I  know  is  it  began  long  before  my  day,  and  I  think  with  Judge  Dillon,  as  I 
have  stated. 

The  Presidents  of  the  United  States  have  generally  appointed  mem- 
bers of  their  own  party  to  the  federal  bench.  In  1801  the  Federalists 
abolished  the  judiciary  system  of  the  United  States  as  it  had  existed,  and 
established  circuit  courts  in  each  of  the  districts,  with  three  judges  for 
each  circuit.  President  Adams  at  the  closing  hours  of  his  administration 
filled  all  these  places  with  Federalists.  These  are  known  as  the  "  Mid- 
night" judges.  This  act  was  repealed  in  1803,  and  Jefferson  appointed 
members  of  his  own  party  to  the  bench.  In  1863  President  Lincoln 
appointed  Stephen  J.  Field  of  California  to  the  supreme  bench,  who  was 
not  a  Republican,  but  known  as  a  Union  Democrat.  In  1891  President 
Harrison  appointed  Judge  Jackson,  a  Democrat,  as  justice  of  the  Supreme 
Court.  In  1 89 1,  when  the  Circuit  Court  of  Appeals  was  created,  Presi- 
dent Harrison  appointed  two  Democrats,  one  for  the  first  and  the  other 
for  the  third  circuit,  out  of  the  nine  circuit  judges.  President  McKinley 
appointed  Judge  Severans  of  Michigan,  a  Democrat,  as  circuit  judge  for 
the  sixth  circuit.  He  also  appointed  George  Gray  of  Delaware  as  an  addi- 
tional circuit  judge  for  the  third  circuit.  This  last  appointment  w'as  per- 
haps made  in  recognition  of  Judge  Gray's  services  on  the  Peace  Commis- 
sion that  made  the  treaty  with  Spain  at  the  close  of  the  Spanish  War. 
President  Roosevelt  appointed  ex-Governor  Jones,  a  leading  Democratic 
politician  of  Alabama,  as  United  States  district  judge  for  the  districts  of 
Alabama.  The  Supreme  Court  of  the  United  States  now  consists  of  six 
Republicans  and  three  Democrats.  Out  of  the  twenty-seven  circuit 
judges  eight  are  Democrats,  and  four  of  these  were  aj^pointed  by  Repub- 
lican presidents.  More  than  three  quarters  of  the  judges  of  the  United 
States  District  Court  are  Republicans.  All  the  other  judges  of  the  fed- 
eral courts  are  Republicans  with  the  exception  of  one  memlDcr  of  the 
Court  of  Claims. 

The  following  states  have  a  bipartisan  judiciary  as  near  as  courts 
composed  of  odd  numbers  will  admit : 


New  Ilampsh 
Connecticut 
New  York  . 
New  Jersey 
Delaware    . 
Illinois  . 
Wisconsin  . 


re 


3  Republicans  and  2  Democrats  in  each  court 

3  Ke])ul)licans  and  2  Democrats  in  each  court 

4  I\ci)ul)licans  and  3  Democrats  in  each  court 

5  Reijublicans  and  4  Democrats  in  each  court 

2  Kcpuhlicans  and  3  Democrats  in  each  court 
4  l\c])ul)licaiis  and  3  Democrats  in  each  court 

3  Republicans  and  2  Democrats  in  each  court 


THE  JUDICIARY  167 

In  Connecticut  the  two  Democratic  members  of  the  supreme  court 
have  been  reappointed  by  a  Republican  governor  and  legislature. 

The  professional  politician  who  thinks  that  the  chief  end  of  a  man  is 
to  get  jobs  for  his  friends  and  scalps  from  his  enemies  will  render  no 
assistance  toward  securing  a  division  of  political  sentiment  on  the  bench 
until  forced  to  it  by  public  demand.    It  is  for  the  bar  to  create  this  demand. 

I  am  fully  aware  that  what  I  have  said  constitutes  political  treason, 
committed  in  the  presence  of  more  than  two  witnesses  to  the  overt  act. 
A  revolutionary  movement,  however,  when  successful  becomes  patriotic, 
and  when  the  reforms  suggested  are  wrought  out,  the  cause  of  justice 
will  applaud  its  benefactors.  In  Kansas  change  from  the  political  method 
of  nominating  and  electing  judges  who  are  adherents  of  the  dominant 
party  is  probably  a  long  way  off. 

It  is  more  difficult  in  a  farming  state  for  the  bar  to  influence  the  gen- 
eral public  than  in  commercial  communities,  where  the  lawyer  has  closer 
association  with  the  people,  and  is  oftener  called  on  to  serve  them  in 
matters  of  importance.  The  farmer  generally  thinks  that  the  lawyer's 
compensation  is  disproportioned  to  the  work  done,  measured  from  the 
standpoint  of  what  he  and  his  employees  earn.  These  considerations 
make  any  reform  in  the  respect  discussed,  through  the  efforts  of  the  bar, 
extremely  problematical  in  this  state.  That  the  result  is  hard  of  accom- 
plishment does  not,  however,  detract  from  its  merit. 

In  the  mechanism  of  clocks  loss  of  time  caused  by  the  increased 
length  of  the  pendulum  in  summer,  due  to  the  expanse  of  metals  by 
heat,  and  a  corresponding  gain  in  winter  by  the  contraction  of  cold,  are 
counteracted  by  the  use  of  a  tube  of  mercury  fastened  to  the  lower  part 
of  the  pendulum,  which,  by  expansion  under  heat,  is  lengthened  and 
transmitted  to  the  top.  By  cold  it  is  shortened,  and  thus  the  effect  of 
heat  or  the  absence  of  it  is  balanced  and  destroyed.  This  appliance  cor- 
rects a  defect  scarcely  appreciable  and  neutralizes  surrounding  influences 
which  tend  to  inaccuracy  in  the  recording  of  time. 

Would  it  not  strengthen  the  public  confidence  in  the  judiciary  if  there 
was  a  compensating  membership  in  courts  of  last  resort,  opposed  in 
numbers  as  nearly  as  practicable  to  those  of  a  different  political  belief, 
to  the  end  that  in  cases  of  a  political  nature  the  scales  of  justice  might 
hang  equally  poised,  not  to  be  disturbed  in  their  equilibrium  by  any 
unseen  or  unconscious  force  ? 


1 68  AMERICAN   STATE  GOVERNMENT 

CLAIMS  AGAINST  THE  STATE  ^ 
By  Simon  Fleischmann 

This  review  of  the  entire  situation  will  show  that  the  attitude  of  the 
national  and  state  governments  and  of  political  subdivisions  and  munici- 
palities thereof,  in  meeting  their  obligations  to  private  citizens,  is  still  in 
discreditable  shape.  The  United  States  government  has  no  tribunal  to 
which  suitors  can  resort  for  redress  in  case  they  are  injured  by  the  tor- 
tuous acts  of  the  government  or  its  agents.  Two  thirds  of  the  states 
have  no  courts  or  tribunals,  whatsoever,  for  the  enforcement  of  claims, 
either  on  contract  or  in  tort.  Municipal  corporations,  generally,  are  not 
liable  for  the  wrongful  acts  of  their  officers,  employees,  or  servants,  when 
engaged  in  what  is,  with  somewhat  ambiguous  comprehensiveness, 
known  as  the  performance  of  governmental  functions.  In  states  which 
have  established  courts  of  claims  and  have  conferred  jurisdiction  upon 
them  in  general  terms,  it  will  probably  be  held,  as  a  rule,  that  the  states 
are  not  liable  for  injuries  inflicted  by  their  officers  or  agents  while  en- 
gaged in  the  performance  of  governmental  functions.  The  national 
government  and  some  states  have  established  courts  for  the  trial  of 
claims  against  the  government,  arising  on  contract ;  and  a  very  few,  for 
demands  growing  out  of  torts,  when  not  committed  in  the  exercise  of 
governmental  functions. 

The  state  of  New  York  has  gone  as  far  as,  and  perhaps  further 
than,  any  other  state  in  opening  the  portals  of  its  court  of  claims  to 
suitors  having  claims  either  on  contract  or  in  tort,  though  the  highest 
court  of  this  state  has  not  yet  passed  upon  the  question  whether  this 
jurisdiction  extends  to  torts  connected  with  the  exercise  of  governmental 
functions.  However,  the  people  of  the  Empire  State  may  feci  just  pride 
in  the  consciousness  that  they  are  in  the  lead  in  forcing  this  'current  of 
the  law  out  of  the  whirlpool  and  into  the  wholesome  and  moving  stream 
of  the  law's  progress. 

It  is  claimed  and  believed  by  many  that  if  the  courts  are  thrown 
open  to  suitors  having  claims  against  the  state,  the  amounts  awarded 
will  be  much  larger  than  if  the  disposition  thereof  be  left  to  the  legisla- 
ture. When  we  consider,  however,  the  influences  brought  to  bear  upon 
legislators,  it  is  far  more  likely  that,  while  there  will  probably  be  fewer 
claims  in  number  presented  to  legislatures  than  to  courts,  the  aggre- 
gate amount  awarded  will  doubtless  be  far  less  through  the  halls  of 
justice  than  through  legislative  lobbies.  The  experience  in  the  court  of 
claims  of  the  state  of  New  York  confirms  this  contention.  In  the  re- 
port of  the  attorney-general  of  New  \'()rk,  for  1909,  gratifying  results 
appear.    Over  four  hundred  claims  were  disposed  of,  the  amounts  claimed 

1  From  a  paper  before  the  New  York  State  liar  Association,  1910.  Reproduced  by 
permission. 


THE  JUDICIARY  169 

aggregating  $4,777,000  ;  whereas  the  judgments  recovered  were  only 
about  $643,000,  or  about  13  per  cent  of  the  amount  claimed.  This  total 
of  judgments  recovered  was,  in  itself,  exceptionally  large,  owing  to  the 
fact  that  it  included  many  heavy  claims  growing  out  of  the  construction 
of  the  new  Barge  Canal,  the  number  of  such  claims  alone  being  seventy- 
nine  and  representing  an  aggregate  claimed  of  $4,247,000,  upon  which 
judgments  were  rendered  for  a  little  more  than  $400,000,  which  was  a 
part  of  the  total  of  $643,000,  for  which  judgments  were  awarded. 
Among  the  claims  so  allowed,  were  several  arising  from  injuries  received 
by  the  breaking  of  the  rope  on  the  inclined  railway  at  Niagara  Falls  in 
July,  1907,  for  all  of  which  $105,000  was  demanded  and  $15,637 
awarded.  With  the  completion  of  the  Barge  Canal  the  exceptional 
claims  for  consequential  damages,  the  disturbance  of  old  water-power 
rights,  and  the  like  will  disappear,  and  the  amounts  awarded  in  the  gen- 
eral run  of  claims  against  the  state  will  be  comparatively  small.  During 
the  year  it  further  appears  that  eighty-nine  claims,  in  which  the  total 
amount  demanded  was  $394,109,  were  dismissed  without  any  award. 
The  virtue  of  the  tribunal  and  its  procedure,  however,  lay  in  the  fact 
that  every  suitor  had  his  day  in  court,  with  reasonable  promptness,  and 
his  claim  had  legal,  capable,  and  impartial  investigation,  with  the  right  to 
the  defeated  party  to  appeal  to  the  highest  court  of  the  state,  and  the 
certainty  of  receiving  payment  for  such  amount  as  the  courts  should 
finally  allow.  Above  all,  the  Empire  State  thus  sets  the  worthy  example 
of  reposing  the  same  confidence  in  its  own  courts  as  it  demands  of  its 
citizens  and  inhabitants  ;  and  when  it  shall,  by  statute,  have  enlarged  its 
liability  and  that  of  its  political  subdivisions  and  municipalities  to  that  of 
all  persons  and  private  corporations  within  its  jurisdiction,  it  will  have 
reached  that  goal  of  legal  advancement  for  which  it  and  all  other 
commonwealths  and  communities  should  strive. 

Having  in  mind,  at  all  times,  that  a  sovereign  state  insists  on  just 
dealings  between  its  citizens  in  meeting  their  obligations  to  one  another 
and  to  itself,  upon  what  justifiable  theory  can  the  state  itself  refuse  to 
do  the  same  justice  it  requires  of,  and  with  the  same  instrumentalities  it 
furnishes  to,  others  ?  It  will  not  do  to  say  that  a  state  cannot  be  sued 
without  its  consent.  This  must  be  so  from  the  fact  that  governmental 
and  judicial  authority  ultimately  rests  in  the  sovereign  power.  But  it  is 
no  truer  as  applied  to  the  state  itself  than  as  regards  its  citizens ;  for 
private  parties  cannot  sue  each  other  without  the  consent  of  the  state, 
and  the  creation  by  it  of  courts  for  the  adjustment  of  such  controversies. 

The  allowance  of  disputed  claims  is  a  judicial  function  and  should  be 
assigned  to  judicial  and  not  to  legislative  bodies.  It  is  obvious,  indeed, 
that  the  intrigue,  favoritism,  and  lobbying  inevitably  connected  with  the 
allowance  of  claims  by  a  legislature  constitute  most  demoralizing  influ- 
ences and  should  be  avoided  on  the  plainest  and  highest  principles  of 
public  policy.    They  have  always  been  the  source  of  political  scandal, 


lyo 


AMERICAN  STATE  GOVERNMENT 


wherever  allowed  or  practiced.  So  the  example  of  the  state  refusing  to 
meet  its  own  obligations  cheerfully,  promptly,  and  adequately  must 
afford  a  most  unwholesome  example  to '  the  whole  community'  and  serve 
as  a  pretext  for  personal  dishonesty. 

The  court  of  appeals  of  New  York,  in  an  early  case,  was  urged  to 
exempt  municipalities  from  liabilit}'  in  all  cases,  whether  exercising  gov- 
ernmental or  private  functions,  upon  the  ground  that  they  must  employ 
agents  to  discharge  the  duties  imposed  upon  them  by  law.  The  court, 
in  denying  such  sweeping  immunity,  used  the  following  forcible  language, 
alike  applicable  to  the  allowance  of  claims  by  any  legislative  body : 

As  a  corporation  can  only  act  by  agents,  such  a  rule  of  action  would  exempt 
it  from  legal  liability  in  every  case,  whatever  might  be  the  circumstances  ;  the 
natural  and  certain  consequences  of  which  would  be  innumerable  applications 
to  the  common  council  for  redress,  legislatively,  and  which  would  bring  in  their 
train  an  organized  body  of  soliciting  parties  and  agents,  the  allowance  some- 
times of  extravagant  and  unjust  claims,  the  rejection,  at  other  times,  of  meri- 
torious ones,  —  in  a  word,  all  the  evils  attending  a  legislative  body  having 
control  over  large  funds,  and  exposed  to  the  solicitations  and  devices  of  a 
corps  of  artful  and  unscrupulous  claimants  and  their  hired  or  interested  agents. 
Where  the  city  now  pays,  in  accordance  with  just  legal  principles,  hundreds 
of  dollars,  it  would  probably  then  pay  thousands,  besides  having  in  the  halls 
of  its  local  legislature  scenes  of  a  most  forbidding  character  (Lloyd  vs.  City, 
5  N.Y.  369,  375). 

The  nation,  the  state,  the  county,  and  the  city  should  be  placed  by 
legislative  or  constitutional  enactment  upon  precisely  the  same  basis  as 
is  every  individual  and  private  corporation.  There  should  be  no  distinc- 
tion or  quibbling  as  to  the  difference  between  governmental  or  other 
functions.  The  state  or  municipal  corporation  can,  from  its  ver)'  nature, 
act  only  through  officers  and  other  agents  ;  and  where  it  injures  a  private 
person  through  some  act  of  commission  or  omission,  which  would  give 
a  cause  of  action  against  a  private  person  or  private  corporation,  the 
state  or  municipality  immediately  employing  such  agent  should  respond 
in  damages,  or  afford  other  appropriate  legal  or  equitable  relief,  under 
an  enforceable  judgment  or  decree  of  a  judicial  tribunal.  The  state  will 
have  ample  protection  and  fairness  of  treatment  in  courts  of  its  own 
creation. 

It  seems  to  me,  further,  that  no  special  courts  of  claims  or  other 
special  tribunals  should  be  created  at  all  for  the  enforcement  of  private 
claims  against  the  state,  but  that  this  jurisdiction  should  be  conferred 
upon  the  existing  courts  of  record  of  each  state,  which  are  deemed  suffi- 
cient for  controversies,  unlimited  in  amount  or  consequence,  between 
citizens  or  private  corporations.  The  state,  in  other  words,  as  a  whole, 
should  show  the  same  confidence  in  its  own  courts  as  it  asks  other 
suitors  to  repose  in  them.  The  jurisdiction  of  the  federal  courts  in 
suits  by  citizens  of  one  state  against  another  state  as  such,  contemplated 


THE  JUDICIARY  171 

by  the  original  federal  Constitution,  before  the  eleventh  amendment 
was  adopted,  should  be  restored,  to  render  this  jurisdiction  harmonious, 
complete,  and  efficient,  and  to  make  it  impossible  for  a  state  to  repudiate 
its  debts  to  any  one.  Should  the  state  or  city  desire  to  protect  itself 
against  actionable  wrongs  to  which  its  officers  and  agents  may  subject 
it,  let  it  take  bonds  of  indemnity  from  them,  as  it  does  for  many  pur- 
poses. But  the  injured  party  should  have  a  right  to  look  to  the  principal 
in  the  transaction,  precisely  the  same  as  in  the  case  of  injury  done  by 
the  agent  of  a  private  person  or  corporation. 

The  time  will  come  when  states  will  do  full  justice,  for  instance,  to 
those  whom  it  may  have  imprisoned  and  whose  innocence  shall  after- 
wards be  established,  by  public  proclamation  and  pecuniary  compensa- 
tion, just  as  it  compels  private  individuals  to  respond  in  damages  in 
cases  of  false  imprisonment.  As  illustrating  the  injustice  of  the  law  in 
this  regard,  a  telegram  to  the  country  at  large,  only  a  few  days  ago, 
announced  that  a  prisoner  in  a  near-by  state  had  just  been  released, 
although  the  indictment  under  which  he  had  been  confined  had  been 
dismissed  three  months  before  his  actual  discharge,  the  incident  of  his 
imprisonment  having  been  overlooked  by  the  district  attorney. 

So  the  law  should  be  comprehensively  amended  to  correct  the  great 
injustice  now  generally  existing,  under  which  citizens  who  suffer  acute 
and  substantial  so-called  consequential  damages,  from  the  establishment 
of  public  improvements  in  public  streets  and  places,  may  not  be  left 
wholly  without  remedy,  as  they  are  in  many  instances.  In  one  such 
case,  in  which  relief  was  denied.  Judge  Gray,  of  the  court  of  appeals 
of  the  state  of  New  York,  properly  said : 

In  this  connection  I  may  say  that  for  such  consequential  damages  as  are 
sought  to  be  recovered  here  from  a  railroad  company,  which  is  lawfully  in  the 
occupation  and  use  of  a  street,  but  which,  incidentally,  is  the  occasion  of  injury 
to  property  owners  in  an  adjoining  street,  by  reason  of  its  performance  of  the 
statutory  duty  to  conform  its  grade  to  the  new  use,  the  legislature  might  very 
properly,  under  limitations,  grant  a  remedy.  Without  such  remedial  legislation, 
however,  the  case  is  one  of  damnum  absque  iitjtiria  (Rauenstein  vs.  N.  Y., 
L.  8c  W.  R.  Co.,  136  N.  Y.  528). 

While  I  appreciate  that  situations  arise  in  which  the  financial  limita- 
tions of  a  community  may  make  it  necessary  to  prescribe  limits,  geo- 
graphical or  otherwise,  beyond  which  remote  or  consequential  injury  to 
property  rights,  resulting  from  public  improvements  or  necessities,  can- 
not be  paid  or  adequately  compensated,  there  can  never  be  any  justifi- 
cation for  repudiating  debts  or  obligations  which  have  been  incurred  or 
responsibility  for  acute  injuries  inflicted;  and  in  no  event  should  the 
doctrine  of  the  limitation  of  public  liability  for  damage  or  harm  done, 
be  restricted  beyond  absolute  and  imperative  necessity.  In  other  words, 
all  of  the  people  of  a  state  or  community  should  not,  because  of  their 
consolidated  interests,  profit  at  the  expense  of  any  one  member  or  citizen 


172 


AMERICAN  STATE  GOVERNMENT 


thereof,  as  they  do,  when  they  refuse  to  meet  their  aggregate  obli- 
gations to  any  one  of  their  number.  In  the  (Rauenstein)  case  above 
cited,  the  court,  in  referring  to  a  prior  decision,  where  damages  had 
been  allowed  under  a  different  state  of  facts,  voiced  this  sentiment  in 
the  following  words : 


'O 


The  reasoning  of  the  decision  was  that,  while  it  was  quite  probable  that 
the  general  interests  of  Buffalo  and  of  the  public  were  promoted  by  the  appro- 
priation of  the  street,  it  by  no  means  followed  that  a  lot  owner,  whose  property 
is  injured,  should  bear  the  loss  for  the  public  benefit. 

No  government  can  afford  to  be  other  than  scrupulously  just  in  its 
dealings  with  other  states,  as  well  as  with  individuals  and  private  corpo- 
rations. If  honesty  is  the  best  policy  for  individuals,  it  is  quite  as  much 
so  for  communities  in  their  official  entity.  A  state  must,  above  all  things, 
be  sound  at  the  core,  and  must  realize  that  honesty,  like  charity,  begins 
at  home.  It  is  amazing  and  discouraging  to  contemplate  how  slowly  the 
appreciation  of  these  truths  is  making  progress,  especially  in  view  of 
the  advance  that  has  been  made  in  other  directions.  It  appears  to  be  a 
problem,  the  solution  of  which,  from  its  wide  scope  and  lack  of  frequent 
and  acute  application,  has,  so  to  speak,  gone  by  default.  Of  course 
demagoguery  and  cheap  rhetoric  about  protecting  taxpayers  against  un- 
just claims  have  played,  and  will  continue  to  play,  their  part  in  retarding 
progress.  But  right  will  eventually  prevail  in  the  nation,  not  only  as  a 
whole,  but  down  to  its  smallest  political  subdivision,  and  the  maxim, 
"  The  king  can  do  no  wrong,"  especially  inapplicable  in  a  government 
having  no  ruler  except  the  people  in  their  own  sovereignty,  will  gradu- 
ally give  way  to  the  nobler  precept,  "  There  is  no  wrong  without  a 
remedy." 


IV 

THE   CRIMINAL  LAW 


DELAYS  AND  DEFECTS  IN  THE  ENFORCEMENT  OF 
LAW  IN  THIS  COUNTRY  1 

By  William  H.  Taft 

If  one  were  to  be  asked  in  what  respect  we  had  fallen  farthest  short  of 
ideal  conditions  in  our  whole  government,  I  think  he  would  be  justified 
in  answering,  in  spite  of  the  glaring  defects  in  our  system  of  municipal 
government,  that  it  is  in  our  failure  to  secure  expedition  and  thorough- 
ness in  the  enforcement  of  public  and  private  rights  in  our  courts.  I  do 
not  mean  to  say  that  the  judges  of  the  courts  are  lacking  in  either 
honesty,  industr)',  or  knowledge  of  the  law,  but  I  do  mean  to  say  that 
the  machinery  of  which  they  are  a  part  is  so  cumbersome  and  slow  and 
expensive  for  the  litigants  —  public  and  private  —  that  the  whole  judicial 
branch  of  the  government  fails  in  a  marked  way  to  accomplish  certain 
of  the  purposes  for  which  it  was  created. 

Generally  in  every  system  of  courts  there  are  a  court  of  first  instance, 
an  intermediate  court  of  appeals,  and  a  court  of  last  resort.  The  court 
of  first  instance  and  the  intermediate  appellate  court  should  be  for  the 
purpose  of  finally  disposing,  in  a  just  and  prompt  way,  of  all  controversies 
between  litigants.  So  far  as  the  litigant  is  concerned,  one  appeal  is  all 
that  he  should  be  entitled  to ;  the  community  at  large  is  not  interested 
in  his  having  more ;  for  the  function  of  the  court  of  last  resort,  usually 
called  the  supreme  court,  is  not  primarily  for  the  purpose  of  securing  a 
second  review  or  appeal  to  the  particular  litigant  whose  case  is  carried 
to  that  court.  It  is  true  that  the  court  can  only  act  in  concrete  cases 
between  the  litigants,  and  so  incidentally  it  does  furnish  another  review 
to  the  litigants  in  every  case  where  it  entertains  an  appeal ;  but  the  chief 
reason  for  granting  such  a  review  is  to  enable  the  supreme  court  to  lay 
down  general  principles  of  law  in  the  interpretation  of  state  or  federal 
constitutions  or  statutes,  or  in  the  application  of  the  common  law,  for 
the  benefit  and  guidance  not  of  the  particular  litigant  affected  but  of 
the  communities  at  large.    Therefore  the  appellate  jurisdiction  of  the 

1  An  address  delivered  before  the  Civic  Forum,  New  York  City,  at  Carnegie  Hall, 
April  28,  1908. 

^7Z 


174  AMERICAN  STATE  GOVERNMENT 

supreme  court  should  generally  be  limited  to  those  cases  which  are 
t}pical,  and  which  give  an  opportunity  to  the  court  to  cover  the  whole 
field  of  the  law  upon  the  subject  involved.  The  highest  function  of  the 
Supreme  Court  of  the  United  States  is  the  interpretation  of  the  Consti- 
tution of  the  United  States,  so  as  to  guide  the  other  branches  of  the 
government  and  the  people  of  the  United  States  in  their  construction  of 
the  fundamental  compact  of  the  Union.  Take  it  all  in  all,  in  the  discharge 
of  this  function  the  judicial  department  is  the  most  novel,  as  it  is  in 
many  respects  the  most  important,  branch  of  the  government.  It  is  the 
background  of  the  whole  government.  In  its  power  of  ultimate  decision 
as  to  the  respective  jurisdictions  of  the  various  departments  of  the  national 
government,  as  to  the  boundaries  between  state  and  national  control,  and 
as  to  the  guarantees  of  life,  liberty,  and  property  to  the  individual,  it  is 
the  balance  wheel  of  the  governmental  system.  The  supreme  courts 
of  the  states  exercise  a  similar,  but  of  course  a  less  important,  function 
within  their  respective  states.  It  is  to  be  presumed  that  the  supreme 
courts,  in  the  course  of  their  decisions  on  general  law,  will  lay  down  with 
reasonable  accuracy  principles  with  sufficient  clearness  to  enable  the 
inferior  courts  to  dispose  of  cases  involving  similar  principles.  The  great 
body  of  the  litigation  involving  particular  controversies  between  indi- 
viduals should  be  confined  to  the  courts  of  first  instance  and  the  inter- 
mediate appellate  courts,  and  one  appeal  is  all  that  any  litigant  should 
be  entitled  to. 

In  the  Supreme  Courts  of  the  United  States  and  of  the  several  states 
business  is  disposed  of  with  as  great  promptness  as  is  consistent  with 
the  proper  exercise  of  their  important  jurisdiction.  It  is  in  the  courts  of 
the  first  instance  and  in  the  intermediate  appellate  courts,  however,  that 
there  is  much  more  delay  than  is  necessar)-.  In  the  first  place,  the  codes 
of  procedure  are  much  too  elaborate.  It  is  possible  that  they  should  be 
both  simple  and  effective,  as  is  shown  by  the  present  procedure  in  the 
English  courts  framed  !:>)•  rules  of  court.  The  code  of  the  state  of  New 
York,  however,  is  staggering  in  the  number  of  its  sections.  A  similar 
defect  exists  in  some  civil-law  countries.  The  elaborate  Spanish  code  of 
procedure  that  we  found  in  the  Philippines  could  be  used  by  a  dilatory 
defendant  to  keep  the  plaintiff  stamping  in  the  vestibule  of  justice  until 
time  had  made  justice  impossible.  Every  additional  technicality,  ever)' 
additional  rule  of  procedure,  adds  to  the  expense  of  litigation ;  and  it  is 
inevitable  that  with  an  elaborate  code  the  expense  of  a  suit  involving  a 
small  sum  is  in  proportion  far  greater  than  that  involving  a  large  sum. 
Hence  it  results  that  the  cost  of  justice  to  the  poor  is  always  greater 
than  it  is  to  the  rich,  assuming,  as  we  reasonably  may,  that  the  poor  are 
more  often  interested  in  small  cases  and  the  rich  in  large  ones. 

Jury  trials  al.so  add  to  the  elaborate  machinery  necessary  for  the  ad- 
justment and  deci.sion  of  the  rights  of  the  litigants,  and  they  greatly 
increase  the  time  and  expense  involved  in  the  disposition  of  litigation. 


THE  CRIMINAL  LAW  1 75 

Another  reason  for  unreasonable  delay  in  the  lower  courts  is  the 
disposition  of  judges  to  wait  an  undue  length  of  time  in  the  writing 
of  their  opinions  or  judgments.  I  speak  with  confidence  on  this  point, 
for  I  have  sinned  myself.  In  English  courts  the  ordinary  practice  is  for 
the  judge  to  deliver  his  opinion  immediately  upon  the  close  of  the  argu- 
ment, and  this  is  the  practice  which  ought  to  be  enforced  so  far  as  pos- 
sible in  our  courts  of  first  instance.  It  is  a  great  deal  more  important 
that  the  court  of  first  instance  should  decide  promptly  than  that  it  should 
decide  right.  The  practice  of  deciding  cases  at  the  close  of  the  hearing 
makes  the  judge  very  much  more  attentive  to  the  oral  argument  of 
counsel,  and  much  more  likely,  on  the  whole,  to  decide  right  when  the 
evidence  and  the  arguments  are  fresh  in  his  mind.  In  the  Philippines 
the  system  had  been  adopted  of  refusing  a  judge  his  regular  monthly 
stipend  unless  he  can  file  a  certificate,  with  the  receipt  for  the  money,  in 
which  he  certifies  on  honor  that  he  has  disposed  of  all  the  business  sub- 
mitted to  him  within  the  previous  sixty  days.  This  has  had  a  marvelously 
good  effect  in  keeping  the  dockets  of  the  court  clear. 

One  of  the  great  difficulties  with  the  profession  of  the  law  is  the  dis- 
position both  of  judges  and  of  advocates  to  treat  the  litigants  as  made 
for  the  courts  and  the  lawyers,  and  not  the  courts  and  lawyers  as  made 
for  the  litigants.  And  as  it  is  lawyers  who,  in  judiciary  committees  of 
the  legislatures,  draft  the  codes  of  procedure,  it  too  frequently  happens 
that  the  motive  for  simplifying  the  procedure  and  making  the  final  dis- 
position of  cases  as  short  as  possible  is  not  as  strong  as  it  should  be.  In 
the  end  such  simplification  would  be  greatly  in  the  interest  of  the  lawyers, 
for  the  present  conditions  of  delay  in  the  courts  lead  many  people  to 
arbitrate  their  case  out  of  court  or  to  yield  to  unjust  claims  rather  than 
to  expose  themselves  to  the  nervous  strain  and  expensive  burden  of  a 
long-drawn-out  contest  in  court. 

In  my  opinion  the  best  method  of  securing  expedition  in  the  disposition 
of  cases  is  to  leave  to  the  judges  of  the  court  the  forming  of  the  pro- 
cedure by  rules  of  court,  imposing  upon  them  the  obligation  to  adopt 
rules  making  the  course  of  litigation  as  speedy  and  as  inexpensive  as 
possible.  I  venture  to  think  that  the  plan  by  which  the  justices  of  the 
peace  who  try  smaller  cases,  and  who  are  neither  professional  men  nor 
apt  in  the  disposition  of  business,  is  not  a  wise  feature  of  the  present 
system.  The  poor  should  have  the  benefit  of  as  acute  and  able  judges 
as  the  rich,  and  the  money  saved  in  the  smaller  salaries  of  the  judges  of 
the  inferior  courts  is  not  an  economy  in  the  interest  of  the  public.  Such 
judges,  after  their  reputations  have  become  established,  would  lead  the 
parties  seeking  their  jurisdiction  to  dispense  with  juries  and  to  submit 
their  controversies  for  immediate  decision.  Under  able,  educated  judges, 
who  understand  the  purpose  of  the  law  in  creating  them,  I  am  quite 
sure  that  courts  of  conciliation,  for  the  purpose  of  settling  small  contro- 
versies without  pleading,  without  lawyers,  and  without  appeals,  could  be 


176  AMERICAN  STATE  GOVERNMENT 

made  successful.  They  have  been  made  successful  in  Germany,  and  I 
do  not  see  that  there  is  such  a  difference  of  conditions  in  this  country  as 
to  prevent  their  being  useful  here. 

It  may  be  asserted  as  a  general  proposition,  to  which  many  legislatures 
seem  to  be  oblivious,  that  everything  which  tends  to  prolong  or  delay 
litigation  between  individuals,  or  between  individuals  and  corporations, 
is  a  great  advantage  for  that  litigant  who  has  the  longer  purse.  The 
wealthy  defendant  can  almost  always  secure  a  compromise  or  a  yielding 
of  lawful  rights  on  account  of  the  necessities  of  the  poor  plaintiff.  While 
such  a  condition  in  the  administration  of  human  law  cannot  be  entirely 
eradicated,  its  injurious  effect  may  be  minimized  by  speeding  the  litigation 
and  reducing  the  opportunities  of  either  litigant  to  prolong  it. 

Many  people  who  give  the  subject  hasty  consideration  regard  as  the 
noblest  product  of  human  wisdom  a  system  of  appeals  by  which  a  suit 
can  be  brought  before  a  justice  of  the  peace  and  carried  through  the 
several  intermediate  courts  of  appeal  to  the  supreme  court  of  the  state. 
How  many  legislative  halls  have  rung  with  the  eloquence  of  defenders 
of  the  oppressed  and  the  poor,  in  opposing  laws  which  were  designed  to 
limit  the  appeals  to  the  supreme  court  to  cases  involving  large  sums  of 
money  or  questions  of  constitutional  or  other  important  law  !  Shall  the 
poor  man  be  denied  the  opportunity  to  have  his  case  reexamined  in  the 
highest  tribunal  of  the  land  ?  Never !  And  generally  the  argument  has 
been  successful.  In  truth,  there  is  nothing  which  is  so  detrimental  to 
the  interests  of  the  poor  man  as  the  right  which,  if  given  to  him,  must 
also  be  given  to  the  other  and  wealthier  party.  It  means  generally  two, 
three,  and  four,  and  in  some  cases  even  five  and  six,  years  of  litigation. 
Could  any  greater  opportunity  be  put  in  the  hands  of  wealthy  persons 
or  corporations  to  fight  off  just  claims  and  to  defeat,  injure,  or  modify 
the  legal  rights  of  poor  litigants,  than  to  delay  them  in  securing  their 
just  due  for  several  years  ?  I  think  not.  The  fact  is  that  procedure  which 
limits  the  right  of  appeal  works  in  the  end  for  the  benefit  of  the  poor 
litigant  and  puts  him  more  on  an  equality  with  a  wealthy  opponent. 
While  it  is  probably  true  that  the  disjDosition  of  the  litigation  is  more 
likely  to  be  just  when  three  tribunals  have  passed  upon  it,  the  injustice 
which  meantime  has  been  done  by  the  delay  to  the  party  originally  en- 
titled to  the  judgment,  generally  exceeds  the  advantage  that  he  has  had 
in  ultimately  winning  the  case.  So  confirmed  have  we  become  in  our 
views  that  delays  are  essential  in  litigation,  that,  in  the  minds  of  many 
lawyers  and  other  persons  familiar  with  the  courts,  the  right  of  a  litigant 
to  delay  before  being  called  ii])on  to  respond  in  damages,  or  in  other 
ways,  to  the  just  claim  of  another,  is  supposed  to  inhere  cither  in  the 
constitution  of  the  state  or  in  the  orderly  administration  of  courts.  To 
hasten  a  litigation  to  an  end  within  six  months  against  the  protesting 
defendant  who  is  mulcted  and  compelled  to  pay  within  that  short  period, 
is  even  characterized  as  "  railroading." 


THE  CRIMINAL  LAW 


177 


There  is  no  foundation  in  the  attitude  of  the  courts  for  the  complaint 
that  the  courts  are  made  for  the  rich  and  not  for  the  poor ;  for  the  judges 
of  this  country  are  as  free  as  possible  from  prejudice  of  that  kind.  But 
the  inevitable  effect  of  the  delays  I  have  referred  to  is  to  oppress  and 
put  at  a  disadvantage  the  poor  litigant ;  and  while  I  do  not  mean  to  say 
that  it  is  possible,  humanly  speaking,  to  put  the  rich  and  the  poor  on  an 
exact  equality  in  regard  to  litigation,  it  certainly  is  possible  to  reduce 
greatly  the  disadvantages  to  the  man  of  little  means  if  the  courts  and 
legislatures  would  devote  themselves  to  the  elimination  from  the  present 
system  of  those  provisions  which  tend  to  prolong  the  time  in  which 
judicial  controversies  are  disposed  of. 

When  we  come  to  the  administration  of  criminal  law  and  the  assertion 
of  public  right,  which  have  a  more  direct  bearing  upon  the  welfare  of  the 
whole  people  than  the  settlement  of  private  rights,  the  injurious  delays 
caused  by  the  procedure  provided  by  legislative  act  are  greatly  accen- 
tuated. No  one  can  examine  the  statistics  of  crime  in  this  country  and 
consider  the  relatively  small  number  of  prosecutions  which  have  been 
successful,  without  realizing  that  the  administration  of  the  criminal  law 
is  a  disgrace  to  our  civilization.  Some  of  the  causes  for  the  lax  adminis- 
tration of  the  criminal  law  may  be  found  in  the  lenient,  happy-go-lucky 
character  of  the  American  people,  absorbed  in  their  own  affairs  and  not 
fully  realizing  that  this  tremendous  evil  exists  in  the  community. 

In  criminal  cases  the  jury  system  is  essential  to  secure  the  rights  of 
the  individual  against  possible  abuses  by  the  government ;  but  it  neces- 
sarily causes  delay.  The  grand-jury  system  enforced  by  the  federal 
Constitution,  although  not  required  in  many  of  the  states,  is  another 
cause  of  delay  in  bringing  criminals  to  justice.  Fully  conceding  the  neces- 
sity of  these  constitutional  restrictions  as  essential  under  our  form  of 
government  to  the  preservation  of  the  liberty  of  the  individual,  we  still 
find  a  large  field  in  which  the  legislature,  by  formulating  proper  and  ex- 
peditious criminal  procedure,  could  avoid  the  discouraging  and  disgraceful 
delays  that  now  exist,  when  the  criminal  has  the  means  to  employ  acute 
lawyers  who  take  advantage  of  every  technical  necessity  presented  by 
the  rules  obtaining  in  the  trial  of  criminal  causes.  Every  month  of  delay 
in  bringing  a  person  charged  with  crime  to  justice  inures,  in  his  ultimate 
trial,  to  his  benefit.  In  order  to  resist  the  amiable  tendency  of  human 
nature  toward  mercy  and  compassion  for  the  unfortunate  charged  with 
crime,  a  jury  must  be  strongly  imbued  with  the  right  of  the  public  to 
have  crime  punished,  and  the  further  backward  into  the  past  the  facts 
upon  which  the  prosecution  is  based  are  pursued,  the  less  strongly  does 
the  jury  feel  its  obligation  to  the  public  at  large  to  restrain  future  crime 
by  the  punishment  of  offenses  committed  in  the  distant  past. 

Again,  the  procedure  provided  by  legislative  enactment  for  the  trial 
of  the  crime  itself  too  frequently  affords  the  opportunity  to  prolong  the 
trial,  and  exaggerates  into  undue  prominence  circumstances  having  no 


1 78  AMERICAN   STATE  GOVERNMENT 

direct  bearing  upon  the  innocence  or  guilt  of  the  defendant,  but  calcu- 
lated to  divert  the  minds  of  the  jur\^  from  the  real  issues,  and  ultimately 
to  lead  to  a  disagreement  or  to  an  acquittal  of  a  really  guilty  man.  Of 
course  such  a  result  could  hardly  be  obtained  except  by  the  employment 
of  skilled  counsel  of  dramatic  power,  able  to  confuse  the  minds  of  the 
jury,  to  destroy  their  sense  of  proportion,  and  to  make  them  reach  con- 
clusions as  jur\'men  which,  as  men  in  their  own  business,  they  would 
repudiate  as  absurd.  The  creation  of  an  atmosphere  of  fog  and  error 
and  confusion  is  only  possible  under  a  system  in  which  the  power  of  the 
court  to  control  its  own  proceedings  and  to  guide  the  jury  to  some  extent 
in  the  w^ay  in  which  it  should  go,  is  so  limited  by  rules  of  judicial  proce- 
dure laid  down  by  legislative  enactment  that  the  judge  becomes  nothing 
but  a  moderator  of  the  proceedings  and  helpless  in  the  hands  of  an  acute 
and  eloquent  counsel  for  the  defense.  The  theory  of  legislatures  in  this 
country  and,  indeed,  the  popular  view,  seems  to  be  that  it  somehow 
works  for  the  benefit  of  the  public  that  the  power  of  the  judge  in  the 
courtroom  should  be  greatly  reduced  and  the  power  of  the  jury'  greatly 
magnified  ;  and  we  discover  the  tendency  to  this  view  more  and  more  as 
we  go  toward  the  western  and  the  newer  states.  The  fact  is,  however, 
that  every  expedient  which  weakens  the  power  of  the  court  and  increases 
the  power  of  the  jury  has  an  effect  wholly  different  from  that  which  is 
intended,  and  increases  the  advantage  enjoyed  by  the  wealthy  when 
brought  before  the  bar  of  a  criminal  court. 

No  legislature  can  legally  take  away  from  the  jury  in  this  country  its 
power  to  do  what  it  believes  to  be  right  under  the  instructions  of  law 
received  from  the  court.  The  power  of  the  court  to  comment  on  the 
evidence,  to  point  out  its  strength  or  its  weakness,  can  never  take  from 
the  jury  its  authority  to  decide  upon  the  facts.  The  restoration,  there- 
fore, of  the  procedure  which  obtained  at  the  common  law  and  which  still 
obtains  in  England,  in  the  courts  of  the  United  States  and  in  some  state 
courts,  by  which  the  verdict  rendered  is  the  result  of  the  independent 
judgment  of  the  jury  guided  both  by  instructions  by  the  court  as  to  the 
law  and  also  by  suggestions  and  comments  as  to  the  facts,  could  work 
no  injustice  to  any  person  brought  into  court,  and  would  secure  not  only 
greater  efficiency  in  the  enforcement  of  the  criminal  law,  but  also  much 
greater  speed  in  the  disposition  of  cases. 

We  have,  as  is  well  understood,  certain  constitutional  restrictions  as  to 
the  procedure  in  criminal  cases,  which  offer  protection  to  the  accused  and 
present  difficulties  in  the  proof  of  his  guilt.  But  these  obtain  as  well 
in  the  ICnglish  courts  as  in  our  own,  and  their  existence  does  not  offer  a 
rea.son  for  the  delays  from  which  we  suffer,  for  such  delays  do  not  exist 
in  the  administration  of  justice  in  England.  A  niurdrr  case  which  in  this 
country  is  permitted  to  drag  itself  out  for  three  weeks  or  a  month,  in 
England  is  dispensed  of  in  a  day,  two  days,  or,  at  the  most,  three  days,  — 
certainly  in  less  than  one  fifth  the  time.    This  is  because  the  English 


THE  CRIMINAL  LAW 


179 


judges  insist  upon  expedition  by  counsel,  cut  short  useless  cross-examina- 
tions, and  confine  the  evidence  to  the  nub  of  the  case.  They  exercise  the 
greater  power,  which,  under  the  common-law  rule,  has  always  been  exer- 
cised by  the  court.  Under  such  practice  it  would  be  possible  for  the 
prosecuting  attorneys  to  clear  their  dockets  ;  as  it  is  now  they  are  utterly 
unable  to  do  so. 

At  the  present  time,  in  our  larger  cities,  a  man  who  is  indicted  and 
has  means  with  which  to  secure  bail  is  released  on  bond,  unless  he  is 
confined  for  murder  in  the  first  degree.  The  pressure  upon  the  prose- 
cuting officers  is  for  the  trial  of  those  who  are  in  jail  and  unable  to  give 
bail,  and  as  a  result  of  the  delays  I  have  mentioned,  jail  cases  are  pro- 
tracted and  the  trial  of  those  who  are  released  on  bail  is  postponed  often- 
times to  the  indefinite  future,  the  evidence  disappears,  newer  and  more 
sensational  cases  come  on,  and  ultimately  nolles  are  entered  and  the 
indicted  man  escapes.  This  is  one  explanation  why  so  many  crimes  go 
wholly  unpunished. 

Another  cause  of  the  inefficiency  in  the  administration  of  the  criminal 
law  is  the  difficulty  of  securing  jurors  properly  sensible  of  the  duty  which 
they  are  summoned  to  perform.  In  the  extreme  tenderness  which  the 
state  legislatures  exhibit  towards  persons  accused  as  criminals,  and  espe- 
cially as  murderers,  they  allow  peremptory  challenges  to  the  defendant 
far  in  excess  of  those  allowed  to  the  prosecution.  In  my  own  state  of 
Ohio,  for  a  long  time,  in  capital  cases,  the  law  allowed  the  prosecution 
two  peremptoiy  challenges  and  the  defendant  twenty-three.  This  very 
great  discrimination  between  the  two  sides  of  the  case  enabled  the  de- 
fendant's counsel  to  eliminate  from  the  panel  every  man  of  force  and 
character,  and  to  assemble  a  collection  in  the  jury  box  of  nondescripts  of 
no  character,  who  were  amenable  to  every  breeze  of  emotion,  however 
maudlin  or  irrelevant  to  the  issue. 

I  do  not  think  that  the  members  of  the  bar  can  escape  the  responsi- 
bility for  the  demoralizing  tendencies  to  which  I  have  referred.  The 
perversions  of  justice  in  my  own  city  of  Cincinnati  in  1884  led  to  the 
appointment  of  a  committee  of  the  bar  to  visit  the  legislature,  to  urge  it 
to  rid  our  criminal  code  of  procedure  of  those  features  which  placed  the 
prosecution  at  an  unfair  disadvantage  in  the  trial  of  capital  cases.  The 
indignation  of  the  public  at  some  of  the  failures  of  justice  in  flagrant 
cases  of  crime  had  led  to  a  riot  and  to  the  burning  of  our  courthouse, 
and  the  public  finally  became  aroused  to  the  serious  defects  in  the  law. 
I  had  the  honor  of  being  one  of  those  who  waited  upon  the  Judiciary 
Committee  of  the  Ohio  legislature  and  preferred  the  request  that  the 
twenty-three  challenges  allowed  to  the  defendant  be  reduced  to  twelve, 
and  that  the  state  be  allowed  a  similar  number ;  but  we  found  that  there 
were  upon  that  committee  lawyers  a  substantial  part  of  whose  practice 
consisted  in  acting  as  counsel  for  defendants  in  criminal  trials.  \\'hen  I 
protested  that  twenty-three  challenges  was  an  outrageous  number,  the 


l8o  AMERICAN  STATE  GOVERNMENT 

chairman  of  the  committee  leaned  back  with  the  remark,  "  Many  a  time 
I  would  have  given  all  my  fee  to  have  had  twenty-four  challenges  for  the 
defendant."  I  cite  this  instance  because  I  believe  that  the  unjust  disposi- 
tion to  curtail  the  power  of  judges  is  due  more  or  less  to  the  intervention 
of  some  members  of  the  bar  whose  practice  is  more  or  less  beneficially 
affected,  as  they  conceive,  by  obstacles  thus  created  to  the  due  course  of 
justice. 

Another  reason  for  delays  in  the  enforcement  of  criminal  law  is  to  be 
found  in  the  right  of  repeated  appeals  which  are  given  in  criminal  cases. 
The  code  of  evidence,  with  its  complicated  rules  and  numerous  technical 
statutor}'  limitations  designed  to  favor  the  defendant,  are  all  used  as  a 
trap  to  catch  the  trial  court  in  error,  however  technical,  upon  which,  in 
appellate  proceedings,  a  reversal  of  the  judgment  of  the  court  below  may 
be  obtained.  The  rule  which  generally  obtains  in  this  country  is,  that  any 
error,  however  slight,  must  lead  to  a  reversal  of  the  judgment,  unless  it 
can  be  shown  afifirmatively  that  it  did  not  prejudice  the  defendant.  The 
disposition  on  the  part  of  the  courts  to  think  that  every  provision  of 
every  rule  of  the  criminal  law  is  one  to  be  strictly  construed  in  favor  of 
the  defendant,  and  even  widened  in  its  effect  in  the  interest  of  the  liberty 
of  the  citizen,  has  led  courts  of  appeal  to  a  degree  of  refinement  in  up- 
holding technicalities  in  favor  of  defendants,  and  in  reversing  convictions, 
that  renders  one  who  has  had  practical  knowledge  of  the  trial  of  criminal 
cases  most  impatient. 

In  a  case  carried  on  error  to  the  Supreme  Court  of  the  United  States 
the  point  was  raised  for  the  first  time  in  that  court  that  the  record  did 
not  show  an  arraignment  of  the  defendant  and  a  plea  of  not  guilty ;  and 
on  this  ground  the  court,  three  judges  dissenting,  reversed  the  judgment. 
There  was  not  a  well-founded  doubt  of  the  fact  that  the  defendant  was 
arraigned  and  pleaded  not  guilty.  The  record  itself  raised  a  presumption 
that  this  was  the  fact ;  but  the  judgment  was  reversed,  although  there 
was  not  a  pretense  that  the  defendant  had  suffered  any  injury  at  the 
trial  by  reason  of  the  alleged  defect  in  the  procedure.  When  a  court  of 
highest  authority  in  this  country  thus  interposes  a  bare  technicality  be- 
tween a  defendant  and  his  just  conviction,  it  may  be  pertinent  to  inquire 
whether  some  of  the  laxity  in  our  administration  of  the  criminal  law  may 
not  be  due  to  a  proneness  on  the  part  of  courts  of  last  resort  to  reverse 
judgments  of  conviction  for  narrowly  technical  error.  There  ought  to  be 
introduced  into  the  statutes  of  every  state  and  of  the  United  States,  in 
regard  to  appeals  in  criminal  cases,  —  and,  indeed,  in  regard  to  appeals  in 
civil  cases,  —  a  provision  that  no  judgment  of  a  trial  court  should  be  re- 
versed except  for  an  error  which  the  court,  after  reading  the  entire  record, 
can  affirmatively  say  would  have  led  to  a  different  verdict  and  judgment. 
This  would  do  no  injustice  and  would  end  reversals  for  technicalities. 

And,  now,  what  has  been  the  result  of  the  lax  administration  of  crimi- 
nal law  in  this  country  ?   Criminal  statistics  are  exceedingly  difficult  to 


THE  CRIMINAL  LAW  l8i 

obtain.  The  number  of  homicides,  the  number  of  lynchings,  and  the 
number  of  executions  one  can  note  from  the  daily  newspapers,  but  the 
number  of  indictments,  trials,  convictions,  acquittals,  or  mistrials  it  is 
hard  to  find.  Since  1885  in  the  United  States  there  have  been  131,951 
murders  and  homicides,  and  there  have  been  2286  executions.  In  1885 
the  number  of  murders  was  1808.  In  1904  it  had  increased  to  8482. 
The  number  of  executions  in  1885  was  108.  In  1904  it  was  116.  This 
increase  in  the  number  of  murders  and  homicides  as  compared  with  the 
number  of  executions  tells  a  startling  story.  As  murder  is  on  the  increase, 
so  are  all  offenses  of  the  felony  class,  and  there  can  be  no  doubt  that 
they  will  continue  to  increase  unless  the  criminal  laws  are  enforced  with 
more  certainty,  more  uniformity,  and  more  severity  than  they  are  at 
present. 

The  strongest  force  in  our  community  is  public  opinion,  and  frequently 
the  existence  of  evils  in  the  community  is  due  to  the  fact  that  it  is  not  suf- 
ficiently directed  to  the  evil  in  hand.  The  enormous  discrepancy  between 
the  crimes  which  are  committed  and  the  crimes  which  are  actually  brought 
to  trial  is  sufficient  to  show  that  public  opinion  is  not  alert  enough,  and 
is  not  directed  against  prosecuting  officers  and  judicial  officers  with  suffi- 
cient vigor  to  bring  to  trial  every  man  guilty  of  an  offense.  In  recent 
years  we  have  been  engaged  in  the  trial  of  wealthy  men  and  corpora- 
tions charged  with  violating  the  antitrust  laws  and  the  antirebate  laws, 
or  laws  against  railway-rate  discrimination.  In  these  trials  there  has  been 
brought  home  to  the  public  the  difficulty  of  securing  the  conviction  of 
wealthy  defendants,  who  employ  acute  counsel  to  take  advantage  of  all 
the  technicalities  and  delays  which  the  present  criminal  procedure  makes 
possible.  And  it  is  quite  possible  that  the  escape  of  wealthy  malefactors 
from  just  punishment  will  bring  home  to  the  people  at  large  the  convic- 
tion which  ought  to  obtain,  that  by  the  tenderness  toward  the  individual 
charged  with  crime  manifested  by  legislatures  and  lawmakers  during  the 
last  fifty  years  in  this  country,  great  injustice  has  been  caused  to  the 
interests  of  the  public,  and  that  the  time  has  come  to  call  a  halt. 


CRIME  AND  JUDICIAL  INEFFICIENCY^    . 

By  James  W.  Garner 

Ex-President  Andrew  D.  White,  in  a  recent  address  at  Cornell  Uni- 
versity, declared  that  as  a  result  of  extensive  studies  carried  on  through 
a  long  period  of  years  and  in  all  parts  of  the  Union  he  had  become 
convinced  that  the  United  States  leads  the  civilized  world,  with  the 
exception  perhaps  of  lower  Italy  and  Sicily,  in  the  crime  of  murder  and 
especially  of  unpunished  murders. 

1  From  the  Annals  of  the  Americati  Academy,  1907, 


/■ 


l82 


AMERICAN  STATE  GOVERNMENT 


The  tnith  of  this  severe  arraignment  is  easily  established  by  reference 
to  the  statistics  of  crime  in  this  and  other  countries.  The  appalling 
increase  in  the  one  crime  of  murder  in  the  United  States  is  apparent 
from  the  following  table  compiled  by  the  Chicago  Trihine  and  published 
in  its  issue  of  December  lo  last.^ 


Year 

Number 
of  murders 

and 

homicides 

in  the 

United  States 

Number 

for  each 

million  of 

people 

Number  of 

executions 

in  the 

United  States 

Number 
of  murders 

and 
homicides 

to  each 
execution 

Number 

of 
lynchings 

1885 

1886 

1887 

1888 

1889 

1890 

1891 

1892 

1893 

1894 

1895 

1896 

1897 

1898 

1899 

1900 

1901 

1902 

1903 

1904 

1,808 
1,499 

2.335 
2,184 

3,567 
4,290 
5,906 
6,791 
6,615 
9,800 
10,500 
10,652 
9,520 
7,840 
6,225 

8,275 
7,852 

8,834 
8,976 
8,482 

32.2 
26.1 
39-8 
364 
58.2 
68.5 
92.4 
104.2 

99-5 
144.7 

152.2 

151-3 
132.8 
107.2 
83.6 
108.4 
100.9 
111.7 
112 
104.4 

108 

79 

87 

98 

102 

123 
107 
126 
132 
132 
122 
128 
109 

131 
"7 
118 
144 
124 
116 

17 
18 

29 
25 
36 
42 
56 
63 
52 

73 
79 
87 
74 
72 
87 
71 
67 
61 

72 
73 

181 

133 
125 
144 

17s 
123 

193 

230 

200 
189 
166 

131 
166 
127 
107 

"5 

135 

96 

104 

87 

Total    .    .    . 

131,951 

•     •     •     • 

2,286 

57 

2,917 

It  will  be  seen  from  the  above  table  that  within  the  space  of  twenty 
years  the  number  of  homicides  has  increased  nearly  400  per  cent ;  that 
the  proportion  of  32  homicides  to  each  million  of  the  population  has 
grown  to  104,  and  that  the  number  of  legal  executions  has  remained 
substantially  what  it  was  when  the  number  of  homicides  was  only  one 
fourth  as  great  as  now.  Compared  with  conditions  in  other  lands,  the 
situation  in  the  United  States,  as  revealed  by  the  statistics  quoted  above, 
is  not  only  di-sgraceful  to  American  civilization,  but  is  highly  serious  and 
deserves  the  thoughtful  consideration  of  all  good  citizens.  As  against 
nearly  9000  homicides  in  the  United  States  in  1903,  only  321  were  re- 
ported in  the  German  Empire,  with  appro.ximately  60,000,000  inhabitants; 
only  322  in  England  and  Wales,  with  a  population  of  32,500,000;  526 

1  I  cannot  verify  the  accuracy  of  the  above  statistics.  A  carefully  prepared  table,  pub- 
lished by  Jud^c  William  II.  Thomas,  of  Montgomery,  Alabama,  covering  the  years  iSSi- 
1906,  shows  substantially  the  same  results. 


THE  CRIMINAL  LAW  1 83 

in  France,  with  a  population  of  38,000,000,  and  61  in  the  Dominion  of 
Canada,  with  a  population  of  5,000,000.  With  112  homicides  to  each 
1,000,000  of  the  population  in  the  United  States  in  1903,  England  and 
Wales  had  less  than  10  (1902),  France  13^  (1899),  the  German  Empire 
less  than  5  (1899"),  and  Canada  about  12  (1903).  In  the  city  of  Chicago 
in  1906,  187  homicides  were  reported,  as  against  24  in  London,  with  a 
population  three  times  as  great,  22  in  Paris,  and  44  in  Berlin,  including 
attempted  murders.  The  worst  feature  about  the  situation  in  the  United 
States  is  the  small  number  of  convictions  and  executions,  the  latter  being 
but  little  more  than  i  per  cent  of  the  homicides,  i  in  73  (1904),  while 
the  number  of  lynchings  exceeds  the  number  of  legal  executions.^  With 
187  homicides  in  Chicago  last  year,  there  were  but  2  cases  of  capital 
punishment,  and  the  Cook  County  jailer  informs  me  (April,  1907)  that 
there  are  no  murderers  awaiting  execution. 

These  facts  need  little  comment.  Taken  in  connection  with  the  statis- 
tics of  the  increase  of  other  crime  than  murder,  they  reveal  a  reign  of 
lawlessness,  a  disrespect  for  constituted  authority,  and  a  judicial  ineffi- 
ciency without  a  parallel  in  any  other  civilized  country.  Dr.  Cutler,  in 
his  interesting  volume  on  "  Lynch  Law,"  shows  that  during  the  last 
twenty  years  more  than  three  thousand  persons  have  been  put  to  death 
in  the  United  States  by  lynch  law,  whereas,  according  to  the  statement 
of  a  well-known  American  jurist,  there  has  not  been  a  case  of  lynch  law 
in  England  for  seventy-five  years,  and  possibly  the  same  may  be  said  of 
Canada,  which  is  separated  from  the  United  States  only  by  an  imag- 
inary boundary  line."  Everywhere  in  the  United  States  we  find  an  in- 
creasing disposition  upon  the  part  of  the  people  to  "  take  the  law  into 
their  own  hands,"  as  they  say,  where  there  have  been  flagrant  failures 
of  justice,  and  inflict,  by  mob  law,  that  punishment  which  should  alone 
be  the  function  of  the  courts.  The  causes  for  the  extraordinary  increase 
of  crime  in  the  United  States  are  due  partly  to  the  tolerant  attitude  of 
the  people  toward  the  criminal  class  and  partly  to  the  lax  administration 
of  the  criminal  law,  which,  by  impairing  popular  confidence  in  the  effi- 
ciency of  the  courts,  fosters  the  mob  spirit  among  all  classes,  and  by  the 
uncertainty  or  failure  with  which  it  metes  out  punishment,  encourages 
the  violation  of  law.  There  is,  as  ex-President  White  has  pointed  out, 
too  much  sham  humanitarianism,  too  much  overwrought,  maudlin  senti- 
mentality in  favor  of  the  criminal  and  too  little  appreciation  of  the  rights 
of  society.    In  spite  of  the  extraordinary  increase  of  the  crime  of  murder, 

1  These  statistics  are  compiled  mainly  from  the  tables  of  the  Chicago  Trihnnc,  the  esti- 
mates of  Judge  Thomas,  referred  to  above,  and  the  Statesman's  Year-Book.  See  also  tables 
of  statistics  in  the  Chicago  Record-Herald  for  July  3,  1906.  Statistics  recently  collected  by 
the  New  York  World  sh.(y^  that  in  1904,  out  of  216  convicted  murderers  in  the  prisons  of 
New  York  state,  only  5  were  awaiting  execution,  and  that  of  2107  murderers  held  for  trial 
in  that  state  during  the  ten  years  from  1896  to  1905  only  52  were  capitally  punished. 

2  Several  well-informed  Canadians  inform  me  that  they  have  never  heard  of  a  case  of 
lynching  in  the  Dominion,  and  upon  inquiry  I  have  received  similar  testimony  regarding  the 
German  Empire. 


1 84  AMERICAN   STATE  GOVERNMENT 

we  hear  it  said  that  the  state  has  no  right  to  put  murderers  to  death.^ 
Convicted  criminals  of  the  worst  type  are  pardoned  through  personal 
sympathy  for  their  families,  sometimes  upon  the  ridiculous  representation 
that  they  have  made  "  brave  fights  "  against  "  fearful  odds  "  for  their 
lives,  not  infrequently  upon  petitions  signed  by  the  judge  and  jury  who 
made  the  conviction  or  by  those  of  the  community  who  have  been 
wronged.  One  of  the  worst  traits  of  American  civilization,  as  compared 
with  that  of  England  and  some  of  the  countries  on  the  continent,  is  the 
general  disrespect  for  law  among  all  classes.  To  one  familiar  with  the 
law-abiding  instincts  of  the  English  people  and  their  regard  for  authority 
the  lawlessness  of  Americans  seems  strange  indeed,  considering  the  racial 
identity  of  the  two  peoples  and  the  similarity  of  their  legal  institutions. 

To  a  large  extent  conditions  in  America  are  due,  as  I  have  said,  to  in- 
eflficient  administration  of  the  criminal  law,  —  are  the  result,  to  use  the 
language  of  Justice  Brown  of  the  United  States  Supreme  Court,  of  the 
failure  of  the  courts  to  discharge  their  natural  functions.  This  view  is  no 
longer  confined  to  the  ranks  of  laymen,  but,  and  it  is  an  encouraging 
sign,  the  best  and  most  candid  judges  and  practitioners  are  beginning  to 
admit  that  there  are  communities  in  the  United  States  where  there  has 
been  a  virtual  breakdown  of  the  administration  of  criminal  justice."^  The 
causes  of  this  inefficiency  are  not  far  to  seek.  They  arise  mainly  from 
a  cumbersome  and  antiquated  procedure  which  is  slow  to  start,  which 
permits  unnecessary  delay  in  expediting  trials  once  begun,  which  attaches 
undue  importance  to  technicalities,  as  a  result  of  which  the  fundamental 
question  of  establishing  the  guilt  or  innocence  of  the  accused  is  subordi- 
nated to  mere  matters  of  practice  and  procedure,  that  is,  primarily  to  the 
attainment  of  technical  perfection.  In  the  second  place,  the  workings  of 
the  jury  system  in  the  form  in  which  it  exists  in  the  American  states, 
together  with  a  too  wide  latitude  of  appeal,  are  responsible  for  a  large 
proportion  of  the  miscarriages  of  justice  and  the  escape  of  criminals  from 
deserved  punishment. 

The  constitutions  of  all  the  states  guarantee  to  the  accused  a  "  speedy  " 
trial,  but  there  are  few  communities  where  this  guaranty  is  anything 
more  than  an  empty  declaration.    Nearly  everywhere  the  jails  are  full  of 

'  Mayor  Dunne  of  Chicago  has  recently  expressed  this  opinion.  The  offenses  of  robbery, 
burglary,  and  assaults  upon  women  in  tliis  city  during  the  last  year  have  been  so  numerous 
and  bold  as  to  cause  general  alarm.  A  bill  fixing  the  death  penalty  for  these  offenses  is  now 
before  the  legislature.  One  of  the  senators  from  Chicago,  in  advocating  the  bill,  declared 
that  there  were  communities  in  his  district  in  which  the  citizens  were  constantly  terrorized. 
Women,  he  declared,  could  not  venture  on  the  streets  even  in  daylight  without  being  as- 
saulted, and,  if  they  resisted,  murdered.  'l"hc  city  council  passed  a  resolution  memorializing 
the  legislature  to  prescribe  the  death  penalty  for  assaults  on  women  and  children,  but  until 
there  is  a  different  public  attitude  toward  crime  there  is  little  likelihood  that  this  will  be  done. 

'■^  lion.  William  II.  Taft,  a  man  who  has  had  large  experience  both  at  the  bar  and  on  the 
bench,  recently  declared  in  an  address  at  Vale  I'niversity  :  "  I  grieve  for  my  country  to  say 
that  the  administration  of  the  criminal  law  in  all  the  states  of  this  Union  (there  may  be  one 
or  two  exceptions)  is  a  disgrace  to  our  civilization."  Judge  .Amidon,  of  the  United  .States 
District  Court  for  the  district  of  North  Dakota,  recently,  in  an  address  before  the  Minnesota 
IJar  Association,  expressed  a  similar  opinion  of  our  system  of  criminal  justice. 


THE  CRIMINAL  LAW  1 85 

prisoners  who  have  waited  months  for  trial,  and  everywhere  the  dockets 
of  the  courts  are  congested  with  cases  which  cannot  be  reached  for  months 
or  years.  It  was  put  in  evidence  before  the  New  York  State  Commis- 
sion on  the  Law's  Delay,  in  1903,  that  on  the  first  of  November  of  that 
year  there  were  ten  thousand  untried  jury  cases  on  the  calendar  of  the 
first  department  of  the  Supreme  Court  of  that  state.  The  court  was  then 
three  years  behind  with  its  work,  and  it  required  from  one  and  a  half  to 
two  years  to  reach  a  jury  trial  in  King's  County  and  in  the  eighth  judicial 
district  (western  New  York).^  The  clerk  of  the  superior  court  of  Cook 
County,  Illinois,  writes  me  that  at  the  beginning  of  the  present  year 
12,653  cases  were  pending  before  the  superior  court  and  18,828  cases 
before  the  circuit  court.  During  the  last  two  years  these  courts  have 
made  notable  progress  toward  clearing  their  calendars,  although  the 
former  is  still  more  than  a  year  behind  and  the  latter  about  two  years 
in  arrears  with  its  work.  In  some  of  the  other  states  conditions  are  even 
worse  than  those  here  described.  Aside  from  the  injury  to  the  accused, 
the  effect  of  such  delays  is  often  to  defeat  the  ends  of  justice.^  During 
the  long  period  intervening  between  the  commission  of  the  offense  and 
the  beginning  of  the  trial  witnesses  sometimes  die,  or  remove  from  the 
jurisdiction  of  the  court,  or,  owing  to  the  infirmities  of  memory,  forget 
material  facts  in  regard  to  the  crime,  and,  what  is  a  common  occurrence, 
public  interest  in  the  case  subsides,  thus  removing  that  pressure  which 
is  one  of  the  chief  incentives  to  induce  the  state's  attorney  to  prosecute 
the  case.  The  judicial  annals  of  all  our  states  are  full  of  flagrant  in- 
stances of  the  breakdown  of  justice  on  account  of  the  delays  in  bringing 
cases  to  trial.  At  this  moment  I  recall  a  case,  reported  in  the  press  dis- 
patches last  July,  of  a  man  who  was  kept  in  a  Milwaukee  jail  for  ten 
months  awaiting  trial  on  a  charge  for  which  the  maximum  punishment 
was  ninety  days'  imprisonment.^  An  "  outrageous  "  instance  of  such  a 
delay,  to  use  the  language  of  an  Illinois  lawyer,  is  afforded  by  the  Iro- 
quois Theater  fire  case.  The  fire  occurred  on  December  30,  1903,  result- 
ing in  the  loss  of  nearly  six  hundred  lives,  and  two  months  later  the 
owner  of  the  theater  was  indicted.     The  indictment  was  held  under 

1  Report  of  Commission  on  the  Law's  Delay,  pp.  8,  17. 

2  This  is  particularly  true  as  regards  civil  controversies.  Mr.  Wheeler  H.  Peckham,  chair- 
man of  the  New  York  Commission  on  the  Law's  Delay,  related  before  that  body  an  instance 
illustrating  this  fact.  He  said  he  had  a  case  in  which  there  were  two  witnesses,  and  while 
waiting  fifteen  months  for  an  opportunity  to  bring  it  to  trial,  one  of  the  witnesses  died  and 
the  other  moved  away.  He  concluded,  therefore,  that  it  would  be  better  to  abandon  the  case, 
and  so  it  was  dropped  (Commission  on  Law's  Delay,  p.  169).  Justice  Gaynor,  testifying  before 
the  same  commission  concerning  the  necessity  of  bringing  commercial  cases  to  trial  speedily 
if  they  were  to  be  tried  at  all,  declared  that  such  cases  could  rarely  "  live  more  than  three 
months,  and  that  in  three  years  they  were  as  dead  as  a  door  nail "  (ibid.  p.  273). 

8  One  of  the  causes  of  delay  in  bringing  cases  to  trial  is  the  grand-jurj'  system.  After 
arrest  and  hearing  before  a  magistrate,  the  accused  must  be  held  to  await  the  action  of  a 
grand  jury  that  may  not  be  summoned  within  three  or  four  months.  The  remedy  is  that  al- 
ready adopted  in  a  considerable  number  of  states,  and  which  has  existed  in  Connecticut  nearly 
a  hundred  years,  namely,  to  authorize  trials  upon  information  by  the  state's  attorney,  subject 
to  certain  restrictions  in  the  interest  both  of  the  criminal  and  the  society. 


1 86  AMERICAN  STATE  GOVERNMENT 

advisement  three  months  by  the  judge  and  then  quashed.  On  March  4, 
1905,  a  new  indictment  was  made,  and  it  was  held  by  the  judge  for  a 
period  of  seven  and  a  half  months.  Then  an  entire  week  was  spent  in 
arguing  the  question  of  a  change  of  venue.  Finally,  in  March,  1907, 
about  four  years  and  three  months  after  the  fire,  the  case  was  brought 
to  trial,  only  to  result  in  the  acquittal  of  the  defendant  upon  instructions 
from  the  court  that  the  building  ordinances  under  which  the  indictment 
had  been  found,  were  defective ;  that  is,  the  verdict  was  based  not  on 
the  merits  of  the  case  (the  judge  said  the  defendant  might  be  morally 
guilty  but  not  legally  guilty)  but  rather  on  a  technicality.  That  criminal 
prosecutions  may  be  more  promptly  initiated  and  rapidly  expedited  the 
experience  of  England  affords  abundant  evidence.  It  is  the  practice  there 
to  bring  the  accused  before  a  magistrate  within  a  few  hours  after  his 
arrest  and  commit  him  to  the  next  session.  Rarely  three  months  elapse 
between  the  commitment  and  the  infliction  of  the  punishment,  if  he  is 
found  guilty.^ 

After  the  case  has  been  reached  on  the  calendar  there  is  the  delay  of 
impaneling  the  jur)',  —  a  delay  which,  under  the  practice  of  most  of  our 
states,  is  coming  more  and  more  to  be  an  .intolerable  evil.  This  proceed- 
ing, as  Justice  Brown  well  observes,  ought  never  to  consume  more  than 
an  hour  or  two,  and  under  the  English  procedure  this  is  the  rule.  Two 
flagrant  instances  of  this  evil  were  recently  afforded  by  the  Gilhooley  and 
Shea  cases  in  Chicago.  In  the  former  case  nine  and  a  half  weeks  were 
required  to  select  the  jury,  involving  an  examination  of  4150  talesmen, 
and  at  a  cost  of  some  $20,000  to  the  state.  The  selection  of  the  first 
Shea  jury  required  thirteen  weeks,  the  summoning  of  10,000  veniremen, 
the  examination  of  4716  talesmen  at  a  cost  of  $40,000  to  the  state  and 
over  $20,000  to  the  defendant,  and  there  is  no  reason  to  believe  that 
the  jury  finally  chosen  were  any  better  qualified  than  the  first  twelve 
men  examined."  The  court  permitted  counsel  to  introduce  false  issues 
and  ask  irrelevant  questions  concerning  their  social,  religious,  and  busi- 
ness aflfiliations,  thus  laying  the  foundations  for  indefensible  challenges.* 
In  the  Gilhooley  trial  counsel  for  the  defense  interrogated  one  of  the 

1  It  is  refreshing  to  note  a  marked  awakening  of  sentiment  among  the  judges  to  the  evil 
described  above.  Recently  Judge  Barnes,  of  Chicago,  declared  that  "the  trouble  with  our 
criminal  law  is  that  offenders  arc  not  brought  quickly  enough  to  trial.  If  a  man,  as  soon  as 
he  commits  a  crime,  could  be  brought  immediately  to  trial  and  sentenced  forthwith,  we  should 
have  a  very  great  decrease  of  crime."  .State's  Attorney  Healy,  of  Cook  County,  has  expressed 
a  similar  opinion. 

2  T.  Newton  Crane,  Esq.,  formerly  a  member  of  the  St.  Louis  bar,  but  for  some  years 
past  a  prominent  barrister  of  London,  in  a  letter  to  Hon.  Joseph  IL  Choate  under  date  of 
March  31,  1903,  speaking  of  the  English  procedure  of  impaneling  juries,  said:  "The  ex- 
amination of  jurors  on  their  voir  dire  is  absolutely  unknown  in  Kngiand,  while  many  lawyers 
who  have  been  in  practice  for  twenty  years  or  more  have  never  known  a  juror  to  be  objected 
to  or  excused  for  cause.  It  not  infrequently  happens  that  the  same  twelve  jurymen  will  hear 
three  cases  without  leaving  the  box"  (Report  Commission  on  Law's  Delay,  p.  iii). 

8  Another  illustration  of  the  practice  of  irrelevant  interrogatories  in  the  selection  of 
juries  was  recently  offered  by  the  Iroquois  Theater  fire  case,  where  counsel  for  the  defend- 
ant asked  prospective  jurors  whether  they  had  any  prejudices  against  dancing,  whether  they 


THE  CRIMINAL  LAW  1 87 

jurors  nearly  two  hours,  mostly  on  immaterial  matters,  and  the  state's 
attorney  put  him  through  a  similar  ordeal,  the  request  of  the  state  that 
thirty  minutes  be  made  the  maximum  time  for  the  examination  having 
been  denied  by  the  court.  According  to  the  English  practice  the  re- 
quirements of  due  process  of  law  in  the  selection  of  juries  are  satisfied 
by  the  simple  inquiry  whether  the  prospective  juror  is  in  any  way  related 
to  the  defendant,  and  if  he  knows  of  any  reason  why  he  is  unable  to  re- 
turn a  verdict  in  accordance  with  the  law  and  the  evidence.  In  the  second 
Shea  trial  the  judge  followed  this  sensible  rule,  and  the  jury  was  selected 
in  twelve  days.  He  refused  to  permit  the  disgraceful  wrangling,  dilatory 
obstructions,  and  rambling,  long-drawn-out,  and  irrelevant  interrogations 
which  marked  the  proceeding  by  which  the  first  jury  had  been  impaneled. 

The  remedies  for  most  of  the  evils  that  have  grown  up  in  connection 
with  the  selections  of  juries  are  the  prohibition  of  irrelevant  examina- 
tions, the  making  of  the  decision  of  the  trial  judge  final  upon  objections 
to  questions  asked  prospective  jurors,  and  the  forbidding  of  reversals 
upon  such  decisions  unless  they  amount  to  a  clear  abuse  of  discretion,  a 
substantial  reduction  of  the  number  of  challenges  allowed,  provision  for 
special  venires  in  important  cases,  and  the  amelioration  of  the  conditions 
of  jury  service  by  treating  jurors  not  like  prisoners  undergoing  punish- 
ment, but  as  citizens  performing  an  honorable  public  service.^ 

The  progress  of  the  trial  after  the  selection  of  the  jury  is  often  unnec- 
essarily hindered  by  slavish  adherence  to  rules  of  procedure  which  are 
prolLx,  antiquated  in  many  particulars,  and  honeycombed  with  technical- 
ities which  to  a  layman  seem  to  have  no  other  purpose  than  to  delay 
judgment  or  provide  loopholes  of  escape  for  criminals.  Indictments  which 
are  not  loaded  down  with  meaningless  verbiage,  and  which  do  not  go  into 
an  absurd  degree  of  particularity,  —  which,  in  short,  do  not  conform  in 
the  minutest  detail  to  the  technical  requirements  of  the  "  sacred  "  forms 
of  procedure,  are  quashed.  Every  prosecuting  officer  knows  how  difficult 
it  is,  on  account  of  the  insistence  of  the  courts  upon  technical  accuracy,  to 
frame  an  indictment  that  will  be  sustained.^    Not  infrequently  ingenious 

were  fond  of  music,  whether  they  believed  in  theatergoing,  whether  they  were  prejudiced 
against  city  people,  whether  any  of  their  families  were  ever  hurt  in  a  fire,  what  newspapers 
they  had  read,  etc. 

1  It  is  not  strange  that  a  man  who  is  confronted  by  the  prospect  of  being  dragged  away 
from  his  home  and  business  and  kept  in  a  state  of  virtual  imprisonment  for  weeks  and  months 
should  profess  prejudice  or  exaggerate  possible  sympathies  in  order  to  escape  the  hardships 
incident  to  such  service.  State's  Attorney  Healy,  of  Chicago,  recently  stated  the  matter  cor- 
rectly when  he  declared  that  the  tendency  of  the  professional  and  business  man  to  avoid  jury 
service  is  due  to  the  failure  of  the  law  to  provide  a  more  expeditious  procedure  for  the  trial 
of  cases.  That  the  amelioration  of  the  conditions  of  jury  service  would  diminish  the  difficul- 
ties of  impaneling  juries  was  shown  in  the  second  Shea  trial,  when  Judge  Kavanagh  announced 
that  jurors  would  be  treated  more  humanely, and  that  instead  of  being  locked  up  like  prisoners, 
they  would  be  treated  with  the  consideration  due  citizens  performing  a  public  dutj-.  With  this 
assurance  the  selection  of  the  jury  proceeded  at  a  rate  which,  as  compared  with  the  first  trial, 
was  expeditious  enough. 

2  Reversals  have  been  granted  for  the  omission  or  inclusion  of  qualifying  words  or  even 
the  abbreviation  of  the  name  of  the  state  in  whose  name  the  indictment  is  brought.   A  recent 


1 88  AMERICAN   STATE  GOVERNMENT 

counsel  who  have  hopeless  cases  refrain  from  demurring  to  indictments 
which  they  know  to  be  technically  faulty  in  order  that  they  may  move 
for  new  trials  in  case  their  clients  are  convicted.  If  the  indictment  is 
sustained,  there  is  always  a  probability  that  the  case  will  be  postponed, 
when  called,  on  account  of  the  unpreparedness  of  counsel,  the  absence  of 
material  witnesses,  or  similar  causes.  Ever\'  one  has  known  of  notorious 
cases  to  be  continued  until  finally  the  popular  demand  for  prosecution 
subsided,  and  the  state's  attorney,  through  sheer  worry  or  lack  of  interest, 
dropped  the  case  and  turned  the  criminal  loose.  Here,  as  in  other  re- 
spects, the  English  procedure  is  an  improvement  upon  that  followed  gen- 
erally in  the  American  states.  Except  for  sickness,  evidence  of  which 
must  be  produced  in  writing,  an  English  judge  will  not  permit  continu- 
ances or  adjournments.  No  request  to  have  a  case  stand  over  or  to  go  to 
the  next  term  merely  for  the  convenience  of  counsel,  says  a  prominent 
London  barrister,  would  be  listened  to.^ 

The  progress  of  the  trial  is  frequently  unnecessarily  delayed  by  the 
method  of  examining  witnesses  ^  and  by  protracted  arguments  over 
questions  concerning  the  admissibility  of  evidence.  It  is  a  common  com- 
plaint against  our  method  of  criminal  procedure  that  too  much  time  is 
wasted  over  technical  objections  to  evidence.  Here  again  the  English 
practice  of  forbidding  long-drawn-out  arguments  on  such  questions  might 
well  be  followed  in  the  United  States.  Justice  Ingraham  of  the  New 
York  supreme  court  says : 

I  have  heard  cases  tried  in  England  quite  a  number  of  times,  both  at  the 
Assizes  and  in  London,  and  I  do  not  think  I  ever  heard  five  minutes  given 
during  a  trial  of  a  case  to  the  discussion  of  questions  of  evidence.  I  have  seen 
case  after  case  go  through  without  the  question  of  evidence  being  raised  at  all.^ 
This  is  a  reform  which  any  judge  who  has  the  proper  concepdon  of  his  duty 
may  introduce  without  exceeding  his  legal  authority.* 

instance  of  the  difficulty  experienced  in  framing  an  indictment  free  from  technical  flaws  was 
afforded  by  the  case  of  Senator  Burton,  of  Kansas,  who  was  charged  with  improperly  accept- 
ing a  retainer  for  the  use  of  his  influence  before  the  Post  Office  Department.  Three  successive 
indictments  were  drawn,  one  of  which  was  quashed  because  of  a  mere  variation  as  to  where 
the  money  was  received, —  whether  at  Washington  or  Kansas  City,  —  a  fact  which  had  no  rela- 
tion to  the  guilt  or  innocence  of  the  accused,  and  which  might  well  have  been  considered  as 
immaterial.  The  state's  attorney  barely  succeeded  in  drawing  a  good  indictment  before  the 
statute  of  limitations  began  to  run  against  the  case. 

1  Letter  of  Mr.  Crane  to  Mr.  Choate,  cited  above. 

2  Justice  Brown  suggests  that  the  progress  of  the  trial  might  often  be  facilitated  by  re- 
quiring counsel  to  stand  while  examining  witnesses  and  by  prohibiting  them  from  taking  notes 
(Great  fititr,  Vol.  XVII,  p.  625). 

8  Testimony  before  New  York  Commission  on  the  Law's  Delay,  p.  247. 

*  Judge  Kavanagh,  in  the  second  Shea  trial,  moved  apparently  by  the  complaint  which 
had  been  made  against  the  conduct  of  the  judge  who  tried  the  first  case,  for  permitting  coun- 
sel to  spend  entire  days  in  arguments  and  wrangles,  and  deeply  impressed,  as  he  says,  by  the 
results  of  some  personal  observations  of  the  procedure  of  the  English  courts  during  the  pre- 
ceding summer,  announced  to  counsel  that  they  would  not  be  permitted  to  delay  the  trial  as 
before,  but  that  points  raised  on  the  admissibility  of  certain  evidence  would  be  decided  by 
the  court  without  argument. 


THE  CRIMINAL  LAW 


189 


The  progress  of  criminal  trials  in  England  is  further  facilitated  by  a 
procedure  which  is  simple  and  expeditious,  and  which  relieves  the  trial 
court  of  the  preliminary  work  of  preparing  the  case  for  trial.  In  the  be- 
ginning the  case  is  taken  in  hand  by  a  master  who  whips  it  into  shape 
and  engineers  it  through  the  preliminary  stage,  after  which  a  trained  bar- 
rister takes  it  in  charge  and  it  is  quickly  disposed  of  by  the  court.  Thus 
the  time  of  the  judge  is  never  wasted  in  hearing  applications,  interlocutory 
motions,  and  other  matters  which  may  as  well  be  disposed  of  out  of  court, 
thus  leaving  the  court  nothing  to  do  but  try  the  case.  The  English  system 
of  pleading  has  in  late  years  been  freed  from  technicalities,  so  that  not 
only  has  the  evil  of  retrials  been  greatly  reduced,  but  the  ability  of  the 
courts  to  dispatch  business  has  largely  increased.^  Concerning  the  effi- 
ciency of  the  English  procedure  and  the  reasons  for  its  superiority  over 
that  in  the  American  states.  Justice  Brown,  recently  retired  from  the 
supreme  court,  has  this  to  say : 

One  who  has  watched  day  by  day  the  practical  administration  of  justice  in 
an  English  court  cannot  but  be  struck  by  the  celerity,  accuracy,  and  disregard 
of  mere  technicalities  with  which  business  is  transacted.  One  is  irresistibly  im- 
pelled to  ask  himself  why  it  is  that,  with  the  reputation  of  Americans  for  doing 
everything,  from  the  building  of  bridges  over  the  Nile  or  battleships  for  Russia 
and  Japan,  to  harvesting,  reaping,  plowing,  and  even  making  butter  by  machin- 
ery, faster  than  other  people,  a  court  in  conservative  old  England  will  dispose 
of  half  a  dozen  jury  cases  in  the  time  that  would  be  required  here  for  dispatch- 
ing one.  The  cause  is  not  far  to  seek.  It  lies  in  the  close  confinement  of 
counsel  to  the  questions  at  issue  and  the  prompt  interposition  of  the  court  to 
prevent  delay.  The  trial  is  conducted  by  men  trained  for  that  special  purpose, 
whose  interest  is  to  expedite  and  not  to  prolong  them.  No  time  is  wasted  in 
immaterial  matters.  Objections  to  testimony  are  discouraged,  rarely  argued,  and 
almost  never  made  the  subject  of  exception.  The  testimony  is  confined  to  the 
exact  point  in  issue.  Mere  oratory  is  at  a  discount.  New  trials  are  rarely 
granted.  A  criminal  trial  especially  is  a  serious  business,  since  in  case  of  a 
verdict  of  guilty  it  is  all  up  with  the  defendant,  and  nothing  can  save  him  from 
punishment  but  the  pardoning  power  of  the  home  secretar)^  The  result  is 
that  homicides  are  infrequent,  and  offenders  rarely  escape  punishment  for  their 
crimes.^ 

One  of  the  most  common  causes  for  the  breakdown  of  criminal  justice 
is  found  in  the  workings  of  the  jury  system  in  the  form  in  which  it  exists 

1  Every  well-informed  lawyer  and  judge  who  testified  before  the  New  York  Commission 
on  the  Law's  IJ)elay  commended  the  efficiency  of  the  English  courts.  T.  Newton  Crane  de- 
clared that  the  "  promptness  and  dispatch  "  with  which  they  tried  cases  was  "  quite  incredible 
to  the  patient  New  York  lawyer  who  was  accustomed  to  wait  three  years  for  the  first  oppor- 
tunity to  try  a  jury  case.  Justice  Friedman,  of  New  York,  stated  that  the  "  results  in  England 
were  truly  great,"  and  others  gave  similar  opinions  (Report,  pp.  ^T,  277).  The  English 
master  of  judicial  statistics,  in  a  letter  to  Ambassador  Choate  under  date  of  April  16,1903, 
stated  that  twenty-three  judges  sitting  at  London  handle  all  the  litigation  of  England  and 
Wales,  with  a  population  of  over  32,500,000,  and  that  they  actually  try  and  determine  an 
average  of  5600  cases  a  year,  or  more  than  twice  as  many  as  are  tried  by  forty-three  judges  in 
New  York  and  Kings  counties  (Report  of  Commission  on  Law's  Delay,  pp.  76,  io6). 

2  Green  Bag,  Vol.  XVII,  p.  624. 


I90  AMERICAN   STATE  GOVERNMENT 

in  America.  This  is  due  mainly  to  the  practice  by  which  the  jury  is  exalted 
at  the  expense  of  the  judge  and  a  unanimous  verdict  required  to  convict. 
There  is  still  a  disposition,  as  in  Blackstone's  day,  to  worship  the  jury  as 
a  sort  of  fetish  and  to  regard  the  judge  with  a  kind  of  superstitious  terror, 
although  nearly  everywhere  the  judges  are  popularly  elected  for  definite 
terms.  In  some  states  this  feeling  is  so  deep-rooted  that  juries  are,  by  the 
constitution,  made  judges  of  the  law  as  well  as  of  the  fact,^  and  practically 
everywhere  they  are  forbidden  to  even  listen  to  suggestions  from  the 
court  concerning  questions  of  fact.  As  Judge  Grosscup  well  says,  the 
American  judge  is  practically  not  allowed  to  take  part  in  the  trial  of  cases. 
His  position  is  rather  that  of  an  umpire  or  moderator  than  of  a  judge  in 
any  real  or  vital  sense.  He  may  listen  to  applications  of  various  kinds 
and  make  rulings  or  motions,  but  he  cannot  comment  on  the  evidence, 
or  review  the  facts,  sifting  out  the  material  from  the  immaterial,  and  put- 
ting them  before  the  jury  in  intelligible  and  coherent  form.  It  matters 
not  how  much  counsel  may  confuse  and  mislead  the  jury  by  their  argu- 
ments, the  judge  cannot  set  them  right  before  giving  the  case  into  their 
hands.  Secretary  Taft  in  a  recent  address  complained  of  the  position  of 
impotency  to  which  American  judges  have  been  reduced,  and  advocated 
the  restoration  to  them  of  some  of  the  powers  which  English  judges  en- 
joy at  common  law,  especially  if  the  unanimity  rule  as  to  verdicts  is  to 
be  retained. 

The  weakest  point  in  the  jury  system  is  the  rule  requiring  unanimous 
verdicts  to  convict.  Although  time-honored,  there  have  always  been  some 
to  see  the  absurdity  of  the  rule.  Hallam,  in  his  "  Middle  Ages,"  called 
it  a  "preposterous  relic  of  barbarism";  Jeremy  Bentham  and  Francis 
Lieber  inveighed  against  it,  and  Judge  Cooley,  in  his  edition  of  Black- 
stone,  declared  that  the  rule  was  "  repugnant  to  all  experience  of  human 
conduct,  passions,  and  understandings,"  and  asserted  that  "  it  could  hardly 
in  any  age  have  been  introduced  into  practice  by  a  deliberate  act  of  the 
legislature."  Justices  Miller  and  Brown,  of  the  United  States  Supreme 
Court,  and  ex-Judge  William  H.  Taft  are  all  on  record  as  favoring  a 
modification  of  the  rule.  Justice  Ingraham,  of  the  New  York  supreme 
court,  has  suggested  the  possibility  of  adopting  a  rule  making  a  verdict 
by  three  fourths  of  the  jury  sufficient  to  convict,  subject  to  the  approval 
of  the  presiding  judge. ^  Nowhere  on  the  continent  of  luirope  does  the 
unanimity  requirement  prevail.  In  Germany,  Austria,  and  Portugal  a 
verdict  may  be  returned  by  two  thirds  of  the  jury;  in  France  and  Italy 
by  a  bare  majority ;    and  in  the  Netherlands,  where  crime  is  almost 

>  This  is  true  in  Illinois.  A  bill  to  limit  the  power  of  juries  to  the  determination  of  ques- 
tions of  fact  Is  now  before  the  Illinois  legislature.  It  was  drawn  by  ex-Judge  .Stein,  of 
Chicago,  and  has  been  recommended  by  the  supreme  court,  which  is  required  by  the  con- 
stitution to  study  defects  in  the  laws  and  suggest  such  alterations  as  it  may  liiink  proper. 

2  Keport  of  New  YorU  State  Commission  on  the  Law's  Delay,  p.  256.  JikIkc  ( lihbons,  of 
Chicago,  recently,  in  a  letter  to  the  Hoard  f)f  Cook  County  Commissioners,  reconunended 
the  abolition  of  the  unanimity  requirement  and  the  substitution  of  a  rule  making  a  verdict 
by  three  fourths  of  the  jury  sufficient  to  convict. 


THE  CRIMINAL  LAW 


191 


nonexistent,  trial  by  jury  does  not  prevail  at  all.  In  Scotland,  curiously 
enough,  a  unanimous  verdict  is  required  to  convict  in  civil  cases,  while  a 
two-thirds  verdict  suffices  in  criminal  cases.  In  England  the  unanimity 
rule  still  prevails,  but  juries  are  never  empowered,  except  in  libel  cases, 
to  pass  on  questions  of  law  ;  and  in  determining  questions  of  fact  they  are 
so  much  under  the  control  of  the  court  that  many  of  the  abuses  which 
result  from  jury  trials  in  the  United  States  are  avoided.  The  theory  upon 
which  the  unanimity  rule  rests  is  that  twelve  men  may  be  found  who  will 
take  the  same  view  of  a  disputed  fact,  that  the  balance  of  each  juror's 
mind  can  be  struck  in  the  same  direction,  that  all  are  able  to  feel  the 
same  cogency  of  proof,  and  that  no  one  can  be  drawn  to  a  conclusion 
different  from  that  at  which  his  fellows  have  arrived.^  It  is  needless  to 
say  that  such  conditions  are  rarely  present  in  the  minds  of  twelve  men 
picked  up  at  random  from  the  community.  The  result  is  that  in  many 
cases  the  unanimity  is  apparent  and  not  real.  Every  one  is  familiar  with 
cases  in  which  a  single  juror  has  set  at  naught  the  opinions  of  eleven,  — 
has,  by  sheer  obstinacy  and  power  of  physical  endurance,  compelled  his 
associates  to  return  verdicts  which  did  not  represent  their  real  convic- 
tions, or  driven  them  to  disagreements,  in  ei^lier  case  defeating  justice. 
The  unanimity  rule  gives  too  much  power  to  one  man.  It  virtually  places 
the  protection  of  the  community  in  the  hands  of  a  single  individual,  who 
is  often  selected  without  regard  to  mental  or  moral  qualification. 

It  is  well  known  that  verdicts  are  often  compromises.  The  hard  lot  of 
the  juror  who  is  kept  away  from  his  home  and  business  often  tends  to 
drive  him  to  yield  a  few  points  and  ultimately  to  sacrifice  his  real  con- 
viction in  order  to  escape  from  the  discomforts  and  hardships  incident  to 
jury  service  in  protracted  cases.  In  many  of  the  American  states  the 
unanimity  requirement  in  the  trial  of  civil  cases  has  been  dispensed  with, 
and  in  a  considerable  number  of  states  the  jury  may  be  waived  altogether 
with  the  consent  of  the  parties.  Likewise  in  a  number  of  states  the  con- 
stitution permits  verdicts  to  be  returned  by  less  than  twelve  jurors  in 
cases  involving  misdemeanors,  and  in  several  (Louisiana  and  Montana, 
for  example)  a  verdict  by  two  thirds  of  the  jury  may  suffice  for  convic- 
tion in  all  cases  not  amounting  to  felony.  Everywhere  there  is  evidence 
of  increasing  dissatisfaction  with  the  results  of  the  unanimity  rule. 

One  of  the  principal  weaknesses  of  the  jur)'  system  is  the  rule  which 
requires  the  jury  to  be  satisfied  beyond  a  reasonable  doubt  of  the  guilt 
of  the  accused  before  returning  a  verdict  of  conviction.  As  if  this  were 
not  enough,  we  not  infrequently  find  the  courts  delivering  instructions  to 
juries  to  give  the  "most  charitable  and  merciful  construction  "  to  the  facts. 
This  rule,  together  with  the  sacrosanct  interpretation  given  to  the  doc- 
trine of  presumed  innocence,  —  a  presumption  which,  as  Dean  Huffcut 
well  observed,  is  raised  by  some  courts  to  the  value  of  actual  proof  of 
innocence, — enables  a  large  proportion  of  criminals  to  escape  punishment. 

1  Compare  Forsythe,  Trial  by  Jur)',  p.  205. 


192  AMERICAN  STATE  GOVERNMENT 

Both  rules  are  no  doubt  the  means  of  occasionally  saving  an  innocent 
man,  but  by  weakening  public  confidence  in  the  courts  and  encouraging 
crime  they  have  caused  the  death  of  many  times  the  number  of  those 
whom  they  have  judicially  shielded.^  The  rule  as  to  reasonable  doubt 
should  be  abolished  and  the  jury  required  to  convict  when  satisfied  by 
a  fair  preponderance  of  the  evidence  of  the  guilt  of  the  accused. 

The  most  prolific  source  of  the  law's  delay  is  the  American  practice  of 
allowing  appeals  almost  as  a  matter  of  course,  and  of  reversing  the  deci- 
sions of  lower  courts  upon  technical  errors  and  granting  new  trials  to 
criminals  who  have  already  been  convicted.  The  rule  also  contributes 
powerfully  to  the  encouragement  of  litigation,  and  so  frequently  ends  in 
flagrant  miscarriages  of  justice  as  to  impair  seriously  the  public  confidence 
in  our  present  system  of  criminal  justice.  Justice  Brown  hardly  exag- 
gerated the  fact  when  he  said  that,  according  to  American  procedure,  the 
rendering  of  the  verdict  is  only  the  beginning  of  the  trial  in  serious  crim- 
inal cases.  The  supreme-court  reports  of  all  our  states  are  full  of  cases 
illustrating  the  truth  of  Justice  Brown's  statement.  Judge  Everett  P. 
Wheeler,  in  an  article  in  the  Columbia  Law  Rez'ieT.v^  cites  the  case  of  a 
negro  desperado  in  New  York  who  had  been  tried  three  times  for  the 
same  murder,  and  while  awaiting  his  fourth  trial,  escaped  and  was  shot  in 
December,  1900,  while  resisting  arrest.  He  quotes  the  New  York  Times 
of  July  16,  1903,  for  an  account  of  the  lynching  of  a  murderer  who  had 
been  twice  found  guilty  by  the  unanimous  verdict  of  a  jury  and  twice 
granted  new  trials  on  technical  grounds.  After  the  third  conviction  he 
was  lynched  by  a  mob  composed  of  the  citizens  of  the  community,  who 
doubtless  feared  that  a  fourth  trial  would  follow,  ending  in  the  acquittal 
of  the  criminal.  A  somewhat  similar  case  was  the  lynching  of  a  mur- 
derer at  Tallulah,  Louisiana,  last  summer.  After  having  been  convicted 
and  sentenced  to  death,  the  supreme  court  reversed  the  decision  of  the 
lower  court  on  a  technicality  and  ordered  a  new  trial.  The  second  trial 
was  interrupted  by  the  death  of  a  member  of  the  judge's  family,  and 
when  the  third  trial  was  begun,  the  plea  of  "'  double  jeopardy  "  was  set 
up,  whereupon  the  case  was  sent  up  to  the  su])reme  court  for  a  ruling 
on  this  point.  At  this  juncture,  two  years  and  three  months  having 
elapsed  since  the  offense  was  committed,  the  citizens,  disgusted  at  the 
attempt  to  punish  by  due  process  of  law  a  murderer  concerning  whose 
guilt  there  seems  to  have  never  been  any  doubt,  took  the  law  into  their 
own  hands  and  inflicted  the  punishment  themselves.  Such  cases  remind 
us  that  there  may  be  an  element  of  truth  in  Goldwin  Smith's  dictum  that 
there  are  communities  in  the  United  States  where  lynch  law  is  better 
than  any  other.  Dean  Huffcut,  in  an  address  on  the  Administration  of 
the  Criminal  Law,  delivered  at  Cornell  University  on  December  6  last, 
referred  to  a  murder  case  which  had  been  tried  substantially  three  times, 

'  On  this  point  compare  the  opinion  of  Everett  P.  Wheeler,  in  Columbia  Law  Review, 
Vol.  IV,  p.  356.  a  Vol.  IV,  p.  j6o. 


THE  CRIMINAL  LAW 


193 


and  which  had  lately  been  disposed  of,  more  than  seven  years  after  the 
offense  was  committed.^  The  first  trial  had  failed  near  its  close  by  the 
illness  of  a  juror ;  the  conviction  upon  the  second  trial  had  been  set  aside 
by  the  court  of  appeals  for  error;  upon  third  trial  he  was  again  con- 
victed, and  the  judgment  was  sustained  by  the  court  of  last  resort.  The 
Chicago  papers  some  time  ago  gave  an  account  of  a  personal-injury  case 
that  had  been  up  to  the  supreme  court  four  times  and  was  then  getting 
ready  for  its  fifth  journey  to  Springfield.  Instances  like  these  might  be 
multiplied  indefinitely.  They  are  extreme  cases,  it  is  true,  but  they  are 
not  rare,  and  they  illustrate  a  growing,  not  to  say  intolerable,  evil  in  our 
judicial  procedure. 

The  pernicious  American  doctrine  that  error  in  the  procedure  of  the 
trial  court  shall  be  presumed  to  have  affected  prejudicially  the  rights  of  the 
defendant,  and  the  practice  of  appellate  courts  in  granting  new  trials, 
even  when  it  can  be  affirmatively  shown  that  the  error  complained  of 
was  immaterial,  are  doing  more  than  anything  else  to  multiply  appeals, 
diminish  popular  confidence  in  the  courts,  and  thwart  justice.  The  follow- 
ing are  some  of  the  grounds  actually  assigned  by  appellate  courts  for 
reversing  the  convictions  of  lower  courts  and  allowing  new  trials :  be- 
cause the  indictment  contained  the  name  of  the  state  in  abbreviated 
form  ;  because  the  word  "  feloniously  "  was  omitted  from  the  indictment, 
although  the  evidence  showed  that  the  crime  was  committed  feloniously  ; 
because  the  words  "  person  or  human  being "  were  omitted  from  the 
indictment ;  because  it  did  not  appear  from  the  record  of  the  trial  court 
that  the  accused  had  been  arraigned  and  pleaded  (as  if  he  could  have 
been  tried  without  being  arraigned  and  without  pleading)  ;  because  the 
jury  reached  a  verdict  on  Sunday  ;  because  the  defendant  was  allowed  to 
offer  evidence  as  to  his  good  reputation  for  honesty  and  integrity,  but 
not  for  truth  and  veracity  (thus  assuming  that  the  jury  might  not  believe 
the  testimony  as  to  the  former,  but  might  believe  it  as  to  the  latter)  ; 
because  the  judge  was  absent  from  the  trial  three  minutes ;  because  wit- 
nesses were  allowed  to  testify  that  at  the  time  of  the  murder  bystanders 
shouted  "  fire,"  "  murder,"  etc.,  all  of  which  were  prejudicial  to  the  right 
of  the  accused  ;  because  the  words  "  on  oath  "  were  omitted  from  the 
indictment ;  because  the  officer  who  summoned  the  jury  was  not  specially 
sworn  ;  because  the  evidence  on  which  a  notorious  robber  was  convicted 
failed  to  show  whether  the  stolen  goods  were  in  coin  or  bills ;  because 
evidence  was  admitted  regarding  former  crimes  committed  by  the  accused, 
etc.^  This  list  is  taken  from  actual  cases  and  might  be  multiplied  in- 
definitely if  it  were  thought  necessary.  Some  of  the  instances  of  the 
enforcement  of  the  rule  of  presumed  prejudice  regarding  error  in  judicial 
procedure,  says  Dean  Wigmore,  one  of  the  leading  authorities  on  the  law 

1  For  reference  to  a  number  of  similar  cases,  see  an  article  by  Nathan  .Smyth,  in  the 
Harvard  Law  Rcvinv,  Vol.  X\'II,  p.  321. 

2  Compare  an  article  by  George  W.  Alger,  in  the  Atlantic  Monthly,  Vol.  XCVII,  p.  502. 


194  AMERICAN  STATE  GOVERNMENT 

of  evidence,  would  seem  incredible  even  in  the  justice  of  a  tribe  of  African 
fetish  worshipers.  The  exaggerated  form  which  it  takes  in  America  tends 
to  reduce  the  trial  to  a  mere  contest  over  errors  rather  than  a  serious 
quest  for  justice,  —  a  sort  of  game  which  the  clever  lawyer  who  has  no 
case  on  the  merits  seeks  to  play  in  such  a  way  as  to  entrap  the  court 
into  committing  an  error  which  will  form  the  basis  of  a  new  trial.  In  the 
ordinary  course  the  judge  is  requested  to  charge  the  jury  on  certain  prop- 
ositions. If  he  refuses  and  the  accused  is  convicted,  a  bill  of  exceptions 
follows  and  the  case  is  appealed.  In  some  states,  if  the  judge  neglects 
to  charge  the  jury  on  every  point  involved  in  the  case,  the  defendant,  if 
convicted,  is  entitled  to  a  new  trial.  If  he  errs  in  his  statement  regarding 
the  applicability  of  the  law,  he  lays  the  basis  for  a  new  trial.  If  he  per- 
mits the  introduction  of  certain  evidence,  even  though  it  is  improper, 
merely  because  of  its  logical  irrelevancy,  and  should  be  excluded  only  for 
the  purpose  of  saving  time,  the  presumption  is  that  it  affects  prejudicially 
the  case  of  the  defendant,  and  he  is  entitled  to  a  new  trial.  Likewise, 
where  the  court  admits  hearsay  evidence,  the  presumption  is  that  the 
jury  are  incapable  of  weighing  and  discounting  it,  although  perfectly 
capable  of  weighing  and  estimating  the  value  of  material  evidence,  and 
hence  the  admission  of  such  evidence  is  treated  as  a  fatal  error.  Thus 
the  judge  is  surrounded  on  every  side  by  pitfalls  set  by  ingenious  counsel, 
and  in  the  trial  of  great  criminal  cases  there  are  few  who  are  able  to  pass 
the  ordeal  without  falling  into  at  least  one  of  the  traps  thus  set.^ 

The  practice  of  allowing  new  trials  upon  trifling  errors  has  become  an 
evil  so  serious  as  to  bring  our  system  of  criminal  justice  into  great  dis- 
repute. A  committee  of  the  American  Bar  Association,  after  an  investi- 
gation of  the  subject  in  1887,  reported  that  new  trials  were  granted 
in  46  per  cent  of  all  cases  brought  under  review  in  the  appellate 
courts  of  this  country.  The  Commission  on  the  Law's  Delay,  created 
by  the  authority  of  the  legislature  of  New  York  in  1903,  found  that 
the  proportion  in  that  state  was  42  per  cent.^  Upon  examination  of 
the  supreme-court  reports  of  Illinois,  covering  the  years  1903-1905, 
I  found  the  proportion  in  this  state  to  be  about  40  per  cent,  fifteen 
of  the  twenty-five  criminal  cases  reversed  being  upon  errors  which  could 
hardly  be  considered  as  substantial  in  the  sense  that  they  could  be  shown 
affirmatively  to  prejudice  tiic  rights  of  the  accused.  A  large  proportion 
of  the  reversals  were  founded  upon  errors  of  practice  and  procedure, 
and  related  principally  to  faulty  indictments  and  the  admission  or  exclu- 
sion of  certain  evidence.  A  similar  examination  of  the  Wisconsin  reports 
showed  the  proportion  of  reversals  to  be  about  30  per  cent  of  the 
total  number  of  appealed  cases.  A  comparison  of  these  figures  with 
those  furnished  by  the  master  of  judicial  statistics  in  England  affords 
striking  evidence  of  the  widely  different  attitude  taken  by  the  English 
appellate  courts  toward  the  question  of  error.    In  the  year   1900,  of 

'  Atlantic  Monthly,  Vol.  XCV'Il,  p.  502.  2  Commission  on  Law's  Delay,  p.  246. 


THE  CRIMINAL  LAW 


195 


337  cases  appealed  from  the  high  court  of  justice  only  15  were  re- 
manded for  retrial,  and  in  1904,  of  555  cases  reviewed  by  the  court  of 
appeal  only  9  were  remanded  for  new  trials.-^  Federal  Judge  Amidon, 
of  North  Dakota,  in  an  address  before  the  Minnesota  Bar  Association 
last  year,  stated  that  he  had  personally  examined  the  law  reports  of 
England,  covering  the  period  from  1890  to  1900,  with  the  result  that 
he  found  that  of  all  the  cases  reviewed  on  appeal  in  that  country  new 
trials  were  granted  in  less  than  3^  per  cent.  It  is  a  rule  of  the  Eng- 
lish procedure  that  no  judgment  or  verdict  of  a  lower  court  shall  be 
disturbed  or  a  new  trial  granted  for  error  if  there  were  sufficient  evi- 
dence to  justify  the  judgment  or  verdict,  or  if  evidence  erroneously  ex- 
cluded would  not,  in  the  opinion  of  the  appellate  court,  have  changed 
the  result  if  it  had  been  admitted.  In  other  words,  judgment  is  ren- 
dered on  the  merits  of  the  case,  and  not  on  mere  considerations  of  tech- 
nical error  in  the  record  or  upon  questions  collateral  thereto.  Instead  of 
presuming  that  error  in  the  trial  below  is  prejudicial  to  the  defendant, 
the  presumption  is  that  it  is  harmless,  and  it  is  incumbent  upon  the 
appellant  to  show  the  contrary. 

One  of  the  results  of  the  strict  enforcement  of  this  rule  by  the  Eng- 
lish appellate  courts  is  a  reduction  in  the  number  of  cases  appealed. 
A  defeated  party  who  has  no  case  on  its  merits  can  have  no  incentive 
to  take  an  appeal.  He  knows  well  that  there  is  no  chance  of  securing  a 
reversal  upon  immaterial  errors  of  the  court  below.  The  consequence  is 
that  not  more  than  one  case  in  ten  is  appealed  from  the  high  court, 
whereas  in  New  York  state  it  is  said  that  on  an  average  ^^  per  cent 
of  the  cases  tried  in  the  first  department  of  the  supreme  court  are 
appealed.^  The  English  procedure  does  not  allow  a  bill  of  exceptions 
to  be  filed  and  argued.  If  there  is  dissatisfaction  with  the  verdict  or 
judgment,  application  may  be  made  to  the  appellate  court  in  writing, 
accompanied  by  copies  of  the  pleadings  and  evidence  made  from  steno- 
graphic reports. 

Moreover,  the  English  appellate  judge  has  all  the  powers  of  the  trial 
judge,  and  he  may  make  any  order  or  judgment  which  ought  to  have 
been  made  by  the  trial  court.  If  by  reason  of  error  below  a  wrong  judg- 
ment was  entered,  the  appellate  court  may  enter  the  judgment  which 
justice  requires  instead  of  sending  the  case  back  for  retrial  upon  errors 
which  were  not  clearly  prejudicial  to  the  right  of  the  accused.  In  other 
words,  the  English  appellate  courts  proceed  on  the  principle  that  it  is  their 
business  to  administer  justice  as  well  as  the  law,  —  a  sensible  rule,  which 
originally  existed  at  common  law,  but,  like  many  of  the  other  common-law 
rules  of  legal  procedure,  has  been  changed  by  statute  or  custom. 

1  Letter  of  T.  Newton  Crane  to  Ambassador  Choate,  cited  above  (N.  Y.  Commission 
on  Law's  Delay,  p.  112). 

2  Report  Commission  on  Law's  Delay,  pp.  34,  76,  246.  In  all  England  in  1903  there 
were  only  1272  cases  appealed  to  the  higher  courts,  while  in  two  departments  of  the  New 
York  appellate  division  (New  York  City  and  Brooklyn)  there  were  2952  appeals. 


196  AMERICAN   STATE  GOVERNMENT 

It  is  gratifying  to  note  that  a  beginning  is  being  made  in  some  of  the 
states  toward  reforming  the  abuses  of  appellate  procedure.  Thus  the 
code  of  criminal  procedure  of  New  York  (Section  542)  declares  that  in 
capital  cases  the  appellate  court  must  give  judgment  without  regard  to 
technical  errors  or  defects,  or  to  exceptions  which  do  not  affect  the  sub- 
stantial rights  of  the  parties ;  and  under  the  practice  of  the  court  of 
appeals  the  obligation  rests  on  the  appellant  to  show  that  the  error 
complained  of  was  prejudicial,  that  is,  that  but  for  the  error  the  result 
would  have  been  different.  The  same  principle  has  been  embodied  in 
the  new  law  for  the  establishment  of  the  Chicago  municipal  court.  This 
law  provides  that  no  order  or  judgment  of  the  municipal  court  shall  be 
reversed  by  the  appellate  court  or  the  supreme  court  unless  they  shall 
be  satisfied  that  the  order  or  judgment  was  contrary  to  law  and  the 
evidence,  or  resulted  from  substantial  errors  directly  affecting  the  mat- 
ters at  issue.  Moreover,  the  appellate  court  is  empowered  to  enter 
such  order  or  judgment  as,  in  its  opinion,  the  municipal  court  ought  to 
have  entered,  instead  of  sending  the  case  back  for  retrial.  There  seems 
to  be  no  good  reason  why  the  rule  in  New  York  should  not  be  extended 
to  cover  the  review  of  other  than  capital  cases,  and  that  the  rule  in 
Illinois  should  not  apply  to  cases  appealed  from  other  than  the 
municipal  court  of  Chicago. 

It  is  the  testimony  of  the  best  lawyers  and  jurists  throughout  the 
country  that  the  interests  of  justice  and  social  order  require  a  restriction 
of  the  right  of  appeal  to  more  reasonable  limits.  Justice  Gaynor,  of 
New  York,  in  his  testimony  before  the  Commission  on  the  Law's  Delay, 
stated  the  matter  tersely  when  he  declared  that  appellate  courts  review 
too  many  things,  and  that  in  our  present  procedure  "  appeals  have  come 
to  be  pretty  nearly  the  principal  thing."  ^  Attorney  liirschberg,  testify- 
ing before  the  same  commission,  asserted  that  the  great  difficulty  with 
our  procedure  was  that  it  is  "  distinctly  an  appellate  system,"  that  it  is 
based  upon  the  "  fundamental  idea  that  a  trial  and  a  decision  are  always 
wrong,"  and  that  as  a  result  of  the  opportunities  thus  afforded  the  temp- 
tation to  indulge  in  litigation  is  vastly  enhanced.'^  To  the  same  effect 
was  the  opinion  of  Justice  O'Gorman,  who  stated  that  nearly  every 
defeated  party  was  willing  to  take  a  chance  of  securing  a  reversal  on 
appeal,  and  that  they  had  every  encouragement  to  do  so.**  Dean  Huffcut, 
in  an  address  already  referred  to,  declared  that  the  remedy  for  the  evil 
described  was  to  provide  that  any  appeal  not  brought  on  for  hearing 
within  six  months  after  it  is  taken,  should  be  stricken  from  the  files,  and 
that  in  addition  it  should  be  provided  that  no  case  should  be  reversed 
unless  it  is  affirmatively  shown  upon  the  whole  record  that  the  error 
complained  of  has  been  prejudicial  to  the  defendant  and  has  resulted  in 
a  miscarriage  of  justice.  If  this  were  done,  he  declared,  appeals  would 
not  only  be  fewer  in  number,  but  would  also  be  more  speedily  pres.sed 

'  Report  Commission  on   Law's  Delay,  p.  267.  2  ]bicl.,  p.  269.  "  Ibid.,  p.  319. 


THE  CRIMINAL  LAW 


197 


and  with  smaller  chance  of  success.^  President  Roosevelt  in  his  last 
annual  message  strongly  recommended  the  incorporation  of  this  rule 
into  federal  procedure,  and  bills  for  its  introduction  into  state  procedure 
are  now  before  the  legislatures  of  a  number  of  states.  The  want  of  it  is, 
as  a  well-known  jurist  has  observed,  more  responsible  than  any  other 
one  cause  for  the  courts  which  are  conducted  by  Judge  Lynch.-  It  is 
the  American  practice  to  allow  appeals  as  a  matter  of  course,  with  little 
regard  to  the  merits  of  the  case.  This  privilege  should  be  limited,  as  in 
England,  to  cases  where  the  trial  judge  in  his  discretion  reserves  for 
review  by  the  higher  court  some  question  of  law  which  he  considers 
doubtful  and  has  decided  adversely  to  the  defendant.^  It  is  no  infringe- 
ment upon  the  right  of  any  person  who  has  been  convicted  by  the  unani- 
mous verdict  of  a  jury  chosen  from  his  neighborhood,  to  say  that  he 
shall  not  be  given  another  chance  to  establish  his  innocence,  unless  it 
can  be  affinnatively  shown  that  substantial  justice  was  not  done  in  the  first 
trial.  The  present  wide  latitude  of  appeal,  although  in  theory  open  to  all, 
is  in  fact  practically  closed  to  the  poor  litigant  on  account  of  the  expense 
involved.  The  rule  thus  operates  to  the  great  advantage  of  the  well-to-do 
litigant  by  opening  an  avenue  of  possible  escape  which  is  in  practice  de- 
nied to  the  man  without  means.  It  is  a  common  saying  which  is  becoming 
truer  all  the  time,  that  the  rich  criminal  with  unlimited  means  at  his 
disposal  can,  through  the  process  of  appeals  and  new  trials,  escape  the 
punishment  which  he  deserves  and  which  he  would  receive  if  he  were 
a  poor  man.*  Any  system  of  criminal  justice  which  makes  possible 
any  such  inequality  in  the  administration  of  the  criminal  law  is  funda- 
mentally wrong  in  principle  and  dangerous  in  practice.  It  not  only 
encourages  lawlessness  among  the  upper  classes,  but  impairs  the  confi- 
dence of  the  lower  classes  in  the  courts  and  promotes  the  spirit  of  lynch 
law  and  anarchy  among  them.  Some  valuable  lessons  might  well  be 
learned  by  our  legal  reformers  from  the  English  and  continental  practice. 
It  has  not  been  very  many  years  since  England  was  agitated  over  the 
situation  arising  from  the  virtual  breakdown  of  her  judicial  machiner)', 
but  they  set  about  in  a  quiet  way  to  make  improvements,  with  the  result 
that  they  have  brought  their  judicial  system  up  to  a  plane  of  efficiency 
which  has  not  yet  been  attained  in  any  American  state.  The  New  York 
State  Commission  on  the  Law's  Delay  reported  that  it  had  been  "  pro- 
foundly impressed"  by  the  character  and  results  of  the  English  procedure, 

•■  \\Js\zc2i.  Eve mng  Journal,  December  6,  1906. 

2  Michigan  Late  Review,  Vol.  Ill,  p.  262. 

3  Compare  Smyth,  "  The  Abuse  of  New  Trials,"  Harvard  Law  Revieif,  Vol.  XVII,  p.  317. 

4  Speaking  on  this  point  to  the  students  of  Cornell  University,  Ex-President  Andrew 
D.  White  recently  said  :  ''  While  the  number  of  murders  is  rapidly  increasing,  the  procedure 
against  them  is  becoming  more  and  more  ineffective,  and,  in  the  light  of  recent  cases  in  New 
York  and  elsewhere,  is  seen  to  be  a  farce.  One  of  the  worst  results  of  these  cases  is  the 
growing  opinion  among  the  people  at  large  that  men  with  money  can  so  delay  justice  by 
every  sort  of  chicanery  that  there  is  a  virtual  immunity  from  punishment  for  the  highest 
crimes." 


198  AMERICAN  STATE  GOVERNMENT 

and  declared  that  the  English  courts,  from  having  been  the  most  dilators' 
in  the  world,  had  become  in  recent  years  the  most  expeditious,  and 
expressed  the  opinion  that  we  "  could  not  do  better  than  adopt  some 
of  these  modern  methods  of  procedure  which  have  been  so  thoroughly 
tested  in  England  and  have  proven  to  work  so  well."  ^ 

The  English  have  largely  freed  their  procedure  from  technicalities,  have 
simplified  and  made  it  less  cumbersome  and  expensive,  have  raised  the 
judge  to  a  more  commanding  position  in  the  conduct  of  the  trial  and 
assigned  the  jur\'  its  true  place,  have  abolished  the  doctrine  of  presumed 
error,  restricted  the  privilege  of  appeal  to  more  reasonable  limits,  and  in 
various  other  ways  provided  a  procedure  which,  to  an  American  lawyer 
accustomed  to  the  delays  and  uncertainties  of  our  system,  seems  won- 
derful indeed."  The  procedure  of  the  German  courts  since  the  adoption 
of  the  imperial  codes  presents  many  features  analogous  to  that  of  Eng- 
land. There  are  no  technicalities  in  pleading;  the  judge  participates  in 
determining  what  shall  be  proved,  and  when  and  in  what  manner  the 
proof  is  to  be  made ;  the  rules  of  evidence  are  simple,  trials  are  promptly 
started  and  rapidly  expedited,  and  criminals  are  punished  with  a  degree 
of  certainty  unknown  in  America.^  In  France,  likewise,  the  criminal  law 
is  administered  in  a  way  which  serves  as  an  effective  deterrent  of  crime, 
and  secures  general  respect  for  law  and  authority. 

Before  we  may  hope  for  a  thoroughgoing  reform  of  the  American  sys- 
tem there  must  be  an  entire  change  of  attitude  upon  the  part  of  the 
people  with  regard  to  the  enforcement  of  law,  the  rights  of  the  commu- 
nity as  against  criminals,  and  the  purpose  of  judicial  punishment.  The 
bench  and  bar  must  also  take  a  more  common-sense  view  of  the  whole 
question  of  the  fundamental  purpose  of  a  judicial  trial.  There  must  be 
less  disposition  to  subordinate  substantive  justice  to  mere  matters  of 
practice.  It  is  also  worth  considering  whether  the  time  has  not  come 
when  some  of  the  presumptions  of  our  law  should  not  be  resolved  in 
favor  of  the  community  rather  than  in  favor  of  the  criminal,  and  whether 
we  should  not  act  more  upon  the  principle  that  the  primar)'  purpose  of 
a  system  of  criminal  justice  is  to  protect  the  innocent  members  of  society 
rather  than  the  criminal  class.  Our  present  methods  had  their  origin  in 
an  age  when  the  number  of  capital  crimes  was  appallingly  large,  and 
when  offenders  were  disproportionately  punished  for  minor  offenses.  To 
make  it  difficult  to  punish  persons  charged  with  crime  in  such  an  age  a 

1  Report  Commission  on  Law's  Delay,  pp.  32,  34. 

'^  The  New  V'ork  Commission  on  the  Law's  Delay,  speaking  of  the  English  system, 
declared  that  "  it  has  undergone  many  important  changes  in  practice  to  meet  the  require- 
ments of  modern  social  and  business  conditions  in  England,  and  that  much  of  our  own 
practice,  time-honored  and  tolerated  because  '  made  in  England,'  has  been  displaced  by  more 
modern  methods  of  procedure,  and  is  obsolete  in  the  land  from  which  it  came,  —  changes 
which  have  worked  havoc  with  many  venerable  notions  and  reversed  precedents  to  which 
our  American  courts  fondly  cling"  (p.  75). 

»  Compare  an  article  by  Rudolf  Dillon  in  the  Twenty-fifth  Annual  Report  of  the  New 
York  State  liar  Association. 


THE  CRIMINAL  LAW  1 99 

procedure  was  developed  which  provided  every  possible  loophole  of 
escape  for  the  accused.  The  old  severity  of  penal  legislation,  however, 
has  long  ago  been  abolished,  yet  the  old  methods  of  procedure,  with  all 
the  safeguards  which  they  threw  around  the  criminal,  are  still  retained. 
They  are  totally  inapplicable  to  present  conditions,  and  in  the  interest  of 
real  justice  as  well  as  social  security  they  ought  to  be  modified  as  they 
have  been  in  England,  where  they  originated.  Our  duty  in  the  premises 
was  well  stated  by  President  Roosevelt  in  a  letter  to  Governor  Durbin  of 
Indiana  in  August,  1903.    He  said  : 

The  best  and  immediate  efforts  of  all  legislators,  judges,  and  citizens  should 
be  addressed  to  securing  such  reforms  in  our  legal  procedure  as  to  leave  no 
vestige  of  excuse  for  those  misguided  men  who  undertake  to  reap  vengeance 
through  violent  methods.  We  must  show  that  the  law  is  adequate  to  deal  with 
crime  by  freeing  it  from  every  vestige  of  technicality  or  delay. 

THE  JUVENILE  COURT  ^ 
By  Julian  W.  Mack 

Most  of  the  children  who  come  before  the  court  are,  naturally,  the 
children  of  the  poor.  In  many  cases  the  parents  are  foreigners,  frequently 
unable  to  speak  English.  These  poor  people  have  not  been  able  to  give 
to  their  offspring  the  opportunities  and  the  supervision  that  many  chil- 
dren enjoy.  The  parents  often  do  not  understand  our  American  meth- 
ods and  views.  What  they  need,  more  than  anything  else,  is  kindly 
assistance;  and  the  aim  of  the  court  in  appointing  a  probation  officer  for 
the  child  is  to  have  the  child  and  the  parents  feel  not  so  much  the  power 
as  the  friendly  interest  of  the  state;  to  show  them  that  the  object  of  the 
court  is  to  help  them  to  train  the  child  right ;  and  therefore  the  probation 
officers  must  be  men  and  women  fitted  for  these  tasks. 

Their  duties  are  oftentimes  of  the  most  delicate  nature.  Tact,  forbear- 
ance, and  sympathy  with  the  child,  as  well  as  a  full  appreciation  of  the 
difficulties  that  the  poorer  classes,  and  especially  the  immigrants,  are  con- 
fronted with  in  our  large  cities,  are  indispensable.  The  New  York  Pro- 
bation Commission  say,  in  their  second  annual  report  for  the  year 
1908,  p.  32: 

In  courts  where  the  probation  system  is  most  effectively  conducted  there  is 
great  variety  in  the  work  done  by  probation  officers.  The  most  successful 
workers  regard  the  receiving  of  reports  from  probationers  as  much  less  impor- 
tant than  the  visiting  and  other  work  done  by  the  probation  officers.  The  pro- 
bation officers  obtaining  the  best  results  enter  into  intimate  friendly  relations 
with  their  probationers,  and  bring  into  play  as  many  factors  as  possible,  such 
as,  for  instance,  securing  employment  for  their  probationers  ;  readjusting  family 
difficulties;  securing  medical  treatment  or  charity,  if  necessary;  interesdng  helpful 

1  From  a  paper  before  the  American  Bar  Association,  1909. 


200  AMERICAN  STATE  GOVERNMENT 

friends  and  relatives ;  getting  the  cooperation  of  churches,  social  settlements, 
and  various  other  organizations ;  encouraging  probationers  to  start  bank  accounts, 
to  keep  better  hours,  to  associate  with  better  companions,  and  so  forth. 

Mr.  Homer  Folks,  chairman  of  this  commission,  and  perhaps  the  lead- 
ing authority  in  the  country  on  child-saving  work,  put  the  matter  well 
when  he  said  (Conference  of  Charities  and  Correction,  1906,  p.  117): 

It  is  the  personal  influence  of  the  probation  officer,  going  into  the  child's 
home,  studying  the  surroundings  and  influences  that  are  shaping  the  child's 
career,  discovering  the  processes  which  have  been  exercising  an  unwholesome 
influence,  and,  so  far  as  possible,  remedying  these  conditions,  —  this  is  the  very 
essence  of  the  probation  system.  The  friendly  side  of  the  probation  officer's 
work  is  its  important  side.  His  duty  is  by  no  means  simply  that  of  securing 
information  for  the  court  as  to  the  child's  conduct,  but  that  of  securing  refor- 
mation. He  is  not  to  be  a  dispassionate  observer,  but  an  active  influence. 
\\'ithout  such  work  on  the  part  of  probation  officers,  without  probation  officers 
qualified  to  conduct  such  work  and  to  carry  it  on  consistently  and  without 
intermission,  the  court  is  practically  helpless.  .  .  . 

The  probation  system  is  really  a  new  way  of  treating  offenders.  It  provides 
a  new  kind  of  reformatory,  without  walls  and  without  much  of  coercion,  but 
nevertheless  seeking  to  bring  to  bear  upon  each  child  the  influences  which  will 
make  for  his  betterment,  and  seeking  to  provide  for  him,  so  far  as  possible  in 
his  own  home,  opportunities  and  facilities  for  education  and  discipline,  which 
we  have  heretofore  provided  only  in  an  institution.  .  .  . 

The  work  of  the  probation  officers  must  therefore  begin,  if  it  does  not  begin 
earlier,  the  very  moment  the  child  leaves  the  court.  It  must  utilize  to  the  full- 
est degree  whatever  advantages  there  are  in  the  shock  caused  by  apprehension 
of  the  child,  by  the  court  proceedings,  and  the  judge's  counsel.  It  must,  by 
force  of  personal  influence  and  in  whatever  ways  may  be  possible,  build  up  a 
strong  influence  in  the  home  of  the  child. 

While  the  paid,  trained  worker  is  to-day  recognized  as  essential  in  all 
fields  of  philanthropy,  nevertheless,  to  obtain  the  fullest  measure  of 
success,  the  active  cooperation  of  the  charitably  inclined,  as  volunteer 
assistants,  must  be  secured,  particularly  in  our  large  cities  where  the 
authorities  have  been  disinclined  to  provide  for  a  sufficient  number  of 
paid  probation  officers,  with  the  result  that  there  are  frequently  assigned 
from  one  to  two  hundred  cases  to  the  officer  of  a  district,  far  too  many 
for  one  man  or  woman  to  care  for  thoroughly. 

If  for  every  boy  and  girl  that  comes  into  court  there  can  be  found 
one  real  friend,  imbued  with  the  spirit  of  human  brotherhood,  —  a  phrase 
that  passes  our  lips  so  readily,  but  is  achieved  in  the  lives  of  so  few  of 
us,  —  willing  to  give  not  that  which  is  .so  ca.sy  for  any  one  who  has  a 
.surplus  above  his  needs,  money,  but  that  which  is  hardest  for  most  of 
us  to  part  with,  ow  tinu-,  our  thought;  who  will  occasionally  take  the 
lad  into  his  own  home,  or  with  his  own  boys  to  the  ball  game  or  to 
the  theater ;    who  will  help  him   to  find  a  job,  who  will  be  genuinely 


THE  CRIMINAL  LAW  20I 

interested  in  him  and  in  seeing  that  his  father  and  his  mother  do  their 
duty  toward  him,  the  problems  of  the  court  will  be  well-nigh  solved. 

In  a  number  of  communities  juvenile-court  committees  have  been 
formed  by  public-spirited  citizens  for  tlie  purpose  of  conferring  with  the 
probation  officers,  assisting  in  and  coordinating  their  work,  helping  the 
judge,  and,  where  the  public  authorities  fail  to  provide  paid  probation 
officers,  supplying  the  necessary  funds.  In  this  way  the  probation  offi- 
cer is  not  left  to  his  or  her  unaided  judgment  and  effort  in  the  perform- 
ance of  these  most  difficult  and  delicate  tasks.  Moreover,  supervision 
is  secured  for  the  work,  and  the  danger  of  its  running  into  ruts  and 
becoming  perfunctory  is  checked. 

Just  a  few  words  about  the  actual  court  procedure  and  practice.  In 
the  first  place,  the  number  of  arrests  is  greatly  decreased.  The  child 
and  the  parents  are  notified  to  appear  in  court,  and  unless  the  danger  of 
escape  is  great,  or  the  offense  very  serious,  or  the  home  totally  unfit  for 
the  child,  detention  before  hearing  is  unnecessary.  Children  are  permitted 
to  go  on  their  own  recognizance  or  that  of  their  parents,  or  on  giving 
bail.  Probation  officers  should  be  and  often  are  authorized  to  act  in 
this  respect.  If,  however,  it  becomes  necessary  to  detain  the  children 
either  before  a  hearing  or  pending  a  continuance,  or  even  after  the 
adjudication,  before  they  can  be  admitted  into  the  home  or  institution  to 
which  they  are  to  be  sent,  they  are  no  longer  kept  in  prison  or  jails,  but 
in  detention  homes.  In  some  states  the  laws  are  mandatory  that  the  local 
authorities  provide  such  homes,  managed  in  accordance  with  the  spirit 
of  this  legislation.  They  are  feasible  even  in  the  smallest  communities, 
inasmuch  as  the  simplest  kind  of  building  best  meets  the  need.  In  this 
building  the  court  may  be  held,  as  is  done  in  some  of  the  larger  cities. 

The  jurisdiction  to  hear  the  cases  is  generally  granted  to  an  existing 
court  having  full  equity  powers.  In  some  cities,  however,  special  courts 
have  been  provided,  with  judges  devoting  their  entire  time  to  this  work. 
If  these  special  courts  can  be  constitutionally  vested  with  full  and  com- 
plete chancery  and  criminal  jurisdiction,  much  is  to  be  said  in  favor  of 
their  establishment.  In  the  large  cities  particularly,  the  entire  time  of 
one  judge  may  well  be  needed.  It  has  been  suggested  from  time  to  time 
that  all  of  the  judges  of  the  municipal  or  special  sessions  courts  be  em- 
powered to  act  in  these  cases ;  but  while  it  would  be  valuable  in  metro- 
politan communities  to  have  more  than  one  detention  home,  more  than 
one  courthouse,  nevertheless  it  would  seem  to  be  even  more  important 
to  have  a  single  juvenile-court  judge.  The  British  government  has 
adopted  this  policy  for  London.  Mr.  Herbert  Samuels  stated  (Hansard, 
4th  ser.,  Vol.  i86,  p.  1298)  during  the  debate  on  the  Children's  Act : 

It  is  impossible  to  bring  all  the  children,  witnesses,  parents,  probation 
officers,  and  other  persons  concerned  into  one  central  court.  The  best  course 
will  be  to  establish  four  places  of  detention  in  different  parts  of  London.  .  .  . 
I  hope  it  will  be  pracdcable  in  these  places  to  provide  rooms,  without  any 


202  AMERICAN  STATE  GOVERNMENT 

additional  cost,  or  very  small  additional  cost,  which  can  be  used  as  courthouses. 
The  children's  magistrate  could  visit  in  turn  these  four  houses.  .  .  .  The 
result  would  be  that  a  certain  number  of  children  would  be  kept  over  night 
sometimes,  when  they  could  not  be  released  on  bail ;  but  all  those  that  I  have 
consulted  agreed  ...  it  is  better  to  keep,  if  necessary,  a  small  number  of 
children  in  detention  for  one  night  than  to  forego  the  great  benefit  of  having 
a  special  magistrate  to  deal  with  these  cases. 

By  the  Colorado  Act  of  1909  provision  is  made  for  hearings  before 
masters  in  chancer}-,  designated  as  masters  of  discipline,  to  be  appointed 
by  the  juvenile-court  judge  and  to  act  under  his  direction.  This  may 
prove  to  be  the  best  solution  of  a  difficult  problem,  combining,  as  it 
does,  the  possibility  of  a  quick  disposition  of  the  simpler  cases  in  many 
sections  of  a  large  city  or  county,  with  a  unity  of  administration  through 
the  supervisory  power  of  a  single  judge. 

The  personality  of  the  judge  is  an  all-important  matter.  The  supreme 
court  of  Utah,  in  the  case  of  Mill  vs.  Brown,  supra,  commenting  upon 
the  choice  of  a  layman,  a  man  genuinely  interested  in  children,  pointed 
out  that : 

To  administer  juvenile  laws  in  accordance  with  their  true  spirit  and  intent 
requires  a  man  of  broad  mind,  of  almost  infinite  patience,  and  one  who  is  the 
possessor  of  great  faith  in  humanity  and  thoroughly  imbued  with  that  spirit. 

The  judge  of  any  court,  and  especially  a  judge  of  a  juvenile  court,  should 
be  willing  at  all  times  not  only  to  respect,  but  to  maintain  and  preserve,  the 
legal  and  natural  rights  of  men  and  children  alike.  .  .  .  The  fact  that  the 
American  system  of  government  is  controlled  and  directed  by  laws,  not  men, 
cannot  be  too  often  or  too  strongly  impressed  upon  those  who  administer  any 
branch  or  part  of  the  government.  Where  a  proper  spirit  and  good  judgment 
are  followed  as  a  guide,  oppression  can  and  will  be  avoided.  .  .  . 

The  juvenile-court  law  is  of  such  vast  importance  to  the  state  and  society 
that  it  seems  to  us  it  should  be  administered  by  those  who  are  learned  in  the 
law  and  versed  in  the  rules  of  procedure,  to  the  end  that  the  beneficent  pur- 
poses of  the  law  may  be  made  effective  and  individual  rights  respected.  Care 
must  be  exercised  in  both  the  selection  of  a  judge  and  in  the  administration 
of  the  law. 

The  decision  but  emphasizes  the  dangers  that  beset  the  path  of  the 
judge  of  the  juvenile  court.  The  public  at  large,  sympathetic  to  the 
work,  and  even  the  probation  officers  who  are  not  lawyers,  regard  him 
as  one  having  almost  autocratic  power.  Because  of  the  extent  of  his 
jurisdiction  and  the  tremendous  responsibility  that  it  entails,  it  is,  in  my 
judgment,  absolutely  essential  that  he  be  a  trained  lawyer,  thoroughly 
imbued  with  the  doctrine  that  ours  is  "  a  government  of  laws  and  not 
of  men." 

He  must  however  be  more  than  this.  He  must  be  a  student  of,  and 
deeply  interested  in,  the  problems  of  jihilanthropy  and  child  life,  as  well 
as  a  lover  of  children.  He  must  be  able  to  understand  the  boy's  point 
of  view  and  ideas  of  justice ;  he  must  be  patient  and  willing  to  search 


THE  CRIMINAL  LAW  203 

out  the  underlying  causes  of  the  trouble  and  to  formulate  the  plan  by 
which,  through  the  cooperation,  ofttimes,  of  many  agencies,  the  cure  may 
be  effected. 

In  some  very  important  jurisdictions  the  vicious  practice  is  indulged 
in  of  assigning  a  different  judge  to  the  juvenile-court  work  every  month 
or  every  three  months.  It  is  impossible  for  these  judges  to  gain  the 
necessary  experience  or  to  devote  the  necessary  time  to  the  study  of  the 
new  problems.  The  service  should,  under  no  circumstances,  be  for  less 
than  one  year,  and  preferably  for  a  longer  period.  In  some  of  our  cities, 
notably  in  Denver,  the  judge  has  discharged  not  only  the  judicial  func- 
tions, but  also  those  of  the  most  efficient  probation  officer.  Judge  Lind- 
sey's  love  for  the  work  and  his  personality  have  enabled  him  to  exert  a 
powerful  influence  on  the  boys  and  girls  that  are  brought  before  him. 
While  doubtless  the  best  results  can  be  obtained  in  such  a  court,  lack 
of  time  would  prevent  a  judge  in  the  largest  cities  from  adding  this  to 
his  strictly  judicial  duties,  even  were  it  not  extremely  difficult  to  find 
the  necessary  combination  of  elements  united  in  one  man. 

The  problem  for  determination  by  the  judge  is  not,  Has  this  boy  or 
girl  committed  a  specific  wrong,  but.  What  is  he,  how  has  he  become 
what  he  is,  and  what  had  best  be  done  in  his  interest  and  in  the  interest 
of  the  state  to  save  him  from  a  downward  career  ?  It  is  apparent  at 
once  that  the  ordinary  legal  evidence  in  a  criminal  court  is  not  the  sort 
of  evidence  to  be  heard  in  such  a  proceeding.  A  thorough  investigation, 
usually  made  by  the  probation  officer,  will  give  the  court  much  infor- 
mation bearing  on  the  heredity  and  environment  of  the  child.  This,  of 
course,  will  be  supplemented  in  every  possible  way ;  but  this  alone  is  not 
enough.  The  physical  and  mental  condition  of  the  child  must  be  known, 
and  it  is  therefore  of  the  utmost  importance  that  there  be  attached  to 
the  court,  as  has  been  done  in  a  few  cities,  a  child-study  department, 
where  every  child,  before  hearing,  shall  be  subject  to  a  thoroughly 
scientific  psychophysical  examination. 

The  relation  between  physical  defects  and  criminality  is  a  very  close 
one.  Take  the  boy  suffering  with  adenoid  growths,  whose  parents, 
through  ignorance  or  neglect,  know  nothing  about  it ;  he  can't  breathe 
properly ;  his  nerves  are  affected ;  he  can't  sit  still ;  the  schoolroom  has 
too  many  pupils  for  one  teacher  (that  is  the  trouble  with  all  our  public 
schools) ;  a  lack  of  harmony  follows,  —  what  is  more  natural  than  that 
that  boy  should  play  hooky  ?  And  truancy  is  often  the  first  step  toward 
a  career  of  criminality.  In  hundreds  and  thousands  of  cases  the  dis- 
covery and  remedy  of  defective  eyesight  or  hearing  or  some  slight  sur- 
gical operation  will  effectuate  a  complete  change  in  the  character  of 
the  lad. 

The  child  who  must  be  brought  into  court  should  of  course  be  made 
to  know  that  he  is  face  to  face  with  the  power  of  the  state,  but  he 
should,  at  the  same  time,  and  more  emphatically,  be  made  to  feel  that  he 


204  AMERICAN   STATE  GOVERNMENT 

is  the  object  of  its  tender  care  and  solicitude.  The  ordinary'  trappings  of 
the  courtroom  are  out  of  place  in  such  hearings.  The  judge  on  a  bench, 
looking  down  upon  the  boy  standing  at  the  bar,  can  never  evoke  a 
proper  sympathetic  spirit.  Seated  at  a  desk,  with  the  little  one  at  his 
side,  where  he  can  on  occasion  put  his  arm  around  his  shoulder  and 
draw  the  lad  to  him,  the  judge,  while  losing  none  of  his  judicial  dignity, 
will  gain  immensely  in  the  effectiveness  of  his  work. 

It  is,  however,  of  far  greater  importance  to  keep  children  out  of  any 
court  than  to  bring  them  even  into  the  juvenile  court.  In  many  com- 
munities the  influence  of  the  probation  officers  in  their  immediate  sur- 
roundings has  been  such  that  they  have  become  arbiters  of  the  petty 
disputes  and  quarrels  that  in  former  years  brought  not  only  the  children 
but  their  parents  into  conflict  and  into  court. 

The  object  of  the  juvenile  court  and  of  the  intervention  of  the  state 
is,  of  course,  in  no  case  to  lessen  or  to  weaken  the  sense  of  responsibility 
either  of  the  child  or  of  the  parent.  On  the  contrary,  the  aim  is  to 
develop  and  to  enforce  it.  Therefore  it  is  wisely  provided  in  most  of 
the  recent  acts  that  the  child  may  be  compelled  when  on  probation,  if 
of  working  age,  to  make  restitution  for  any  damage  done  by  it.  More- 
over, the  parents  may  not  only  be  compelled  to  contribute  to  the  support 
even  of  the  children  who  are  taken  away  from  them,  and  sent  to  institu- 
tions, but  since  the  Colorado  Act  of  1903  they,  as  well  as  any  other 
adults,  may  be  made  criminally  liable  for  their  acts  or  neglect  contribu- 
ting to  a  child's  dependency  or  delinquency.  In  most  of  the  jurisdictions 
which  have  established  separate  juvenile  courts,  as  well  as  in  some  of 
the  others,  all  criminal  cases  affecting  children  are  tried  by  the  juvenile- 
court  judge.  In  drafting  legislation  of  this  kind,  however,  it  must  not  be 
overlooked  that  if  the  proceedings  against  the  adult  are  criminal,  his 
constitutional  rights  must  be  carefully  safeguarded.  Following  general 
principles,  such  penal  acts  are  strictly  construed,  and  therefore  in  the 
recent  case  of  Gibson  vs.  People,  99  Pac.  ;^^^  [1909],  the  Colorado 
supreme  court  limited  the  application  of  the  act  of  1903  to  the  parents 
and  those  standing  in  a  parental  relation  to  the  child.  Colorado,  in  1907, 
however,  as  well  as  several  other  states,  expressly  extended  the  scope 
of  such  statutes  so  as  to  include  any  person,  whether  standing  in  loco 
parentis  or  not.  The  supreme  court  of  Oregon,  in  State  vs.  Dunn,  99 
Pac.  278  [1909],  construed  such  legislation  to  refer  only  to  misconduct 
not  otherwise  punishable. 

Kentucky  in  1908,  followed  by  Colorado  in  1909,  has  enacted  a 
.statute  drafted  by  Mr.  Bernard  Flexner,  of  Louisville,  —  one  of  the  few 
prominent  members  of  the  bar  who  have  taken  a  profound  and  active 
interest  in  the  work  of  the  juvenile  court,  and  to  whom  I  am  greatly  in- 
debted for  assistance  in  .securing  material  for  this  paper,  —  providing  for 
the  enforcement  of  parental  obligations  not  in  the  criminal  but  in  the 
chancery  branch  of  the  juvenile  court.    A  decree  not  merely  for  the 


THE  CRIMINAL  LAW  205 

payment  of  support  money,  but  for  the  performance  or  omission  of 
such  acts,  as  under  the  circumstances  of  the  case  are  found  necessary, 
may  be  enforced  by  contempt  proceedings. 

Valuable,  however,  as  is  the  introduction  of  the  juvenile  court  into 
our  system  of  jurisprudence,  —  valuable  both  in  its  effect  upon  the  child, 
the  parents  and  the  community  at  large,  and  in  the  great  material  saving 
to  the  state  which  the  substitution  of  probation  for  imprisonment  has 
brought  about,  —  nevertheless  it  is  in  no  sense  a  cure-all.  Failures  will 
result  from  probation  just  as  they  have  resulted  from  imprisonment. 
As  Judge  Lindsey  has  said  (Juvenile-Court  Laws,  etc.,  p.  23)  : 

It  does  not  pretend  to  do  all  the  work  necessary  to  correct  children  or  to 
prevent  crime.  It  is  offered  as  a  far  superior  method  to  that  of  the  old  criminal- 
court  system  of  dealing  with  the  thing  rather  than  the  child.  That  method 
was  more  or  less  brutal.  The  juvenile-court  system  has  a  danger  in  becoming 
one  of  leniency,  but  as  between  this  method  and  that  of  the  criminal  court  it 
is  much  to  be  preferred.  But  the  dangers  of  leniency  as  well  as  those  of 
brutality  can  be  avoided  in  most  cases.  Juvenile-court  workers  must  not  be 
sentimentalists  any  more  than  brutalists.  In  short,  the  idea  is  a  system  of  pro- 
bation work  which  contemplates  cooperation  with  the  child,  the  home,  the 
school,  the  neighborhood,  the  church,  and  the  business  man  in  its  interests 
and  that  of  the  state.  Its  purpose  is  to  help  all  it  can  and  to  hurt  as  little  as 
it  can  ;  it  seeks  to  build  character,  —  to  make  good  citizens  rather  than  useless 
criminals.  The  state  is  thus  helping  itself  as  well  as  the  child,  for  the  good  of 
the  child  is  the  good  of  the  state. 

But  more  than  this,  the  work  of  the  juvenile  court  is,  at  the  best, 
palliative,  curative.  We  take  these  little  human  beings  that  are  going 
the  downward  path  and  we  try  —  and  I  think  to  some  extent  succeed 
—  in  saving  them  from  going  farther  down.  But  that  is  not  the  most 
important  task.  The  vital  thing  is  to  prevent  them  from  reaching  that 
condition  in  which  they  have  to  be  dealt  with  in  any  court ;  and  we  are 
not  doing  our  duty  to  the  children  of  to-day,  the  men  and  women  of 
to-morrow,  when  we  neglect  to  destroy  the  evils  that  are  leading  them 
into  careers  of  delinquency,  when  we  fail  not  merely  to  uproot  the 
wrong,  but  to  implant  in  place  of  it  the  positive  good. 

It  is  well  that  we  have  these  schools  for  the  delinquent  boy  and  girl ; 
it  is  well  that  when  they  get  into  them  they  receive  a  thorough  technical 
training,  so  that  they  are  fitted  for  something  afterwards.  But  it  would 
be  infinitely  better  if  all  children  could  receive  that  kind  of  an  education 
before  they  reach  the  court ;  it  would  be  infinitely  better  if  we  checked 
delinquency  in  its  incipiency,  and  the  incipiency  generally  is  truancy. 

To  do  this  we  must  make  the  school  interesting,  —  more  interesting 
than  it  is  to-day ;  we  must  provide  for  those  children  who  cannot  sit  at 
their  desk  all  day  long  with  only  mental  work ;  we  must  put  manual 
training  right  through  the  entire  school  system,  so  that  there  will  be  an 
outlet  for  their  nervous  energies,  so  that  they  will  have  something  to 


2o6  AMERICAN   STATE  GOVERNMENT 

work  on  with  their  hands  instead  of  merely  with  the  brain ;  and  we 
must  have  the  physician  and  the  nurse  in  the  school.  We  must  not  wait 
until  the  physical  or  mental  troubles  produce  a  state  of  delinquency  and 
are  discovered  by  the  physician  connected  with  the  court. 

And  then,  what  is  to  be  expected  of  the  boys  if  they  are  not  given  a 
proper  place  to  play  ?  If  they  are  going  to  be  driven  into  the  streets,  natu- 
rally they  will  come  into  contact  with  the  policeman,  naturally  there  will 
be  trouble,  and  the  heroism  and  hero-worship  that  follows  trouble  with 
the  public  authorities.  And  when  that  sort  of  heroism  begins,  they  have 
stepped  onto  the  highroad  to  criminality.  How  shall  they  be  halted  ? 
By  giving  the  boys  and  girls  proper  playgrounds,  not  only  in  our  cities 
but  in  our  towns  and  villages ;  by  giving  them  the  small  parks  with 
their  swimming  pools  and  their  skating  rinks  and  their  assembly  halls 
and  their  gymnasiums ;  by  thus  giving  them  a  chance  to  convert  the 
"gang,"  which  can't  be  eradicated,  —  it  is  not  human  to  go  alone,  the 
crowd  is  the  natural  thing,  —  to  convert  the  "  gang  "  into  a  team  pulling 
together  for  good  instead  of  working  together  for  evil.  That  is  the  result 
that  has  been  obtained  wherever  these  small  parks  have  been  established, 
especially  in  the  congested  districts  of  the  cities.  The  boys  get  what  they 
need.  The  appeal  is  made  to  their  manhood  and  their  honor.  In  every 
community  there  are  needed  separate  ungraded  rooms  for  the  backward 
children,  vacation  and  night  schools,  proper  child-labor  and  compulsor)-- 
education  laws,  above  all  a  living  wage  for  the  worker,  and  many  more 
things  I  should  like  to  touch  upon  in  this  connection,  had  I  the  time. 

Just  one  more  point.  The  number  of  girls  that  go  wrong  in  a  large 
city  is  enormous.  The  majority  of  them  do  not  start  in  from  love  of  lust, 
but  from  love  of  joy,  —  the  joy  of  life  that  is  in  every  normal  human 
being.  Take  the  girl  that  is  working  all  day  long  and  then  comes  home 
to  two  or  three  rooms  occupied  by  a  large  family  in  the  slum  districts 
that  the  city  fails  to  keep  clean  ;  she  docs  n't  want  to  stay  there  every 
evening ;  she  wants  to  go  out ;  she  wants  that  pleasure  and  happiness  that 
our  girls  want,  she  likes  the  dance  and  the  play  just  as  much  as  do  our 
girls.  We  let  our  girls  enjoy  themselves  in  a  decent  way  under  decent 
surroundings,  but  what  do  we  do  for  these  girls  ?  The  public  dance  hall 
offers  them  the  joy  and  the  lights  and  the  pleasures ;  but  if  the  good 
citizens  of  the  town  will  offer  them  those  joys,  —  those  decent,  innocent 
pleasures, —  in  a  decent  way  and  under  proper  influences,  as  do  our  settle- 
ments scattered  throughout  our  large  cities,  and  some  of  the  churches, 
the  girls  will  choose  the  latter  nine  times  out  of  ten,  aye  ninety-nine  times 
out  of  the  hundred.  But  they  must  have  .some  outlet  for  their  energy, 
some  satisfaction  for  this  cry  for  joy  and  happiness,  and  if  we  do  not 
give  it  to  them,  they  will  get  it  in  another  way. 

In  a  number  of  communities  juvenile  protective  leagues  have  been 
established  to  carry  on  this  preventive  work  of  seeing  to  it  that  conditions 
injurious  to  child  life  are  remedied,  that  offenses  against  children  are 


THE  CRIMINAL  LAW  207 

punished,  that  the  compulsory-education  and  child-labor  laws,  without 
which  juvenile-court  legislation  is  well-nigh  worthless,  are  properly  en- 
forced ;  and  to  promote  this  constructive  work  of  furnishing  the  largest 
opportunities  for  the  full  and  complete  development  of  a  happy  childhood. 

I  have  touched  upon  some  of  the  positive  needs  that  mean  so  much 
in  the  growth  of  the  child ;  through  them  may  come  the  prevention  of 
that  delinquency  for  which  the  juvenile  court  offers  merely  a  cure.  And 
it  is  to  a  study  of  the  underlying  causes  of  juvenile  delinquency,  and  to 
a  realization  of  these  preventive  and  positive  measures,  that  we,  the 
trained  professional  men,  following  the  splendid  lead  of  many  of  our 
European  brethren,  should  give  some  thought  and  some  care.  The  work 
demands  the  united  and  aroused  efforts  of  the  whole  community,  bent  on 
keeping  children  from  becoming  criminals,  determined  that  those  who 
are  treading  the  downward  path  shall  be  halted  and  led  back. 

To  quote  again  from  the  debates  on  the  Children's  Bill  in  the  House 
of  Commons  (Hansard,  4th  ser.,  Vol.  186,  p.  1262): 

We  want  to  say  to  the  child  that  if  the  world  or  the  world's  law  has  not 
been  his  friend  in  the  past,  it  shall  be  now.  We  say  that  it  is  the  duty  of  this 
parliament,  and  that  this  parliament  is  determined,  to  lift,  if  possible,  and 
rescue  him,  to  shut  the  prison  door  and  to  open  the  door  of  hope. 

THE  PAROLE  LAW  OF  ILLINOIS^ 
By  E.  a.  Snively" 

The  parole  law  was  the  outgrowth  of  the  progressive  and  reformative 
views  of  those  who  believed  that  severe  and  unusual  punishment  would 
not  reform  men  and  women.  It  was  the  natural  result  of  the  same  spirit 
which  abolished  the  stocks  and  whipping  post. 

In  this  state  it  was  first  appHed  to  the  Illinois  State  Reformatory  at 
Pontiac,  where  the  definite  sentence  was  abolished  and  the  indeterminate 
sentence  was  substituted. 

In  1895,  upon  recommendation  of  Governor  Altgeld,  the  principle 
was  applied  to  the  Joliet  and  Chester  prisons,  and  all  persons  convicted 
of  a  felony,  except  those  convicted  of  treason,  murder,  and  rape,  were 
merely  sentenced  to  the  penitentiary  with  the  proviso  that  they  should 
serve  the  minimum  sentence  provided  by  law,  but  should  not  ser\^e  longer 
than  the  maximum.  As  the  law  did  not  take  effect  until  July,  1895,  and 
as  there  were  few  courts  held  until  later  in  the  fall  of  the  year,  there 
were  but  few  persons  convicted  whose  minimum  expired  prior  to  July, 
1897.  Under  the  act  of  1895  the  penitentiary  commissioners  were  re- 
quired to  administer  the  parole  law,  but  the  legislature  of  1897  amended 
the  law  so  that  this  work  fell  to  the  Board  of  Pardons. 

1  Address  before  the  Sangamon  County  Bar  Association,  1906. 

2  Member  Illinois  State  Board  of  Pardons, 


2o8  AMERICAN  STATE  GOVERNMENT  ■ 

The  old  law  was  as  vicious  a  piece  of  legislation  as  was  ever  enacted. 
It  was  vicious  because  its  enforcement  gave  the  most  gross  inequality  in 
sentences.  It  was  vicious  because  it  made  criminals  instead  of  reforming 
men.  It  was  vicious  because  it  gave  the  habitual  criminal  a  short  sentence, 
while  the  first  offender  most  frequently  received  a  long  sentence.  Let 
me  call  attention  to  a  few  facts  which  are  within  the  knowledge  and 
observation  of  every  member  of  the  bar  who  has  been  practicing  for  a 
half  dozen  years.  Since  the  present  constitution  was  adopted  and  the 
office  of  state's  attorney  for  each  county  has  succeeded  to  the  former 
provision  of  a  state's  attorney  for  each  circuit,  about  25  per  cent  of 
the  state's  attorneys  have  been  young  men, —  bright,  smart,  intelligent, 
but  yet  without  having  had  much  previous  experience.  The  reason  for 
this  is  found  in  the  small  compensation,  the  older  and  more  able  attorneys 
not  caring  for  the  office  in  view  of  the  great  amount  of  work  for  the 
income. 

In  many  cases  the  young  official  found  himself  matched  against  the 
ablest  member  of  the  bar.  When  this  occurred  it  was  in  nearly  every 
case  where  the  offender  was  a  man  with  a  criminal  record.  The  result 
would  often  be  that  the  state's  attorney  would  be  only  too  willing  to  accept 
a  plea  of  guilty  and  have  the  man  receive  a  sentence  of  one  or  two  years. 
The  very  next  case  might  be  one  where  some  fellow,  filled  with  cheap 
whisky,  had  committed  some  minor  felony ;  he  was  poor  and  had  no 
money  to  employ  a  lawyer,  and  the  court  in  nearly  every  instance  appoints 
some  young  and  inexperienced  member  of  the  bar.  The  prior  conviction, 
the  plea  of  guilty  and  the  short  sentence,  had  caused  indignation  in  the 
community,  and  this  feeling  permeates  the  courtroom.  The  second  man 
goes  to  trial ;  the  state's  attorney  is  equal  if  not  superior,  in  point  of 
ability  and  experience,  to  the  attorney  for  the  defense.  The  evidence 
is  heard,  the  jury  retires,  not  only  to  consider  their  verdict,  but  with  a 
determination  to  see  that  "  the  majesty  of  the  law  is  vindicated,"  and 
they  bring  in  a  verdict  giving  the  poor  fellow  a  ten  years'  sentence. 

When  these  men  came  to  compare  notes,  the  first  would  let  it  be 
known  that  he  had  committed  numerous  crimes  and  had  before  served 
in  prison.  The  second  man  had  never  before  transgressed  the  law,  and 
the  law  itself  did  not  recognize  his  crime  to  be  as  great  as  that  of  the 
other,  and  yet  he  had  received  five  times  the  punishment.  He  be- 
came embittered  against  the  law.  During  his  long  nights  in  his  lonely 
cell  he  again  and  again  contrasted  his  lot  with  that  of  the  other,  and 
when  he  was  released  he  went  out  determined  to  wreak  vengeance  against 
society  for  what  he  felt  was  his  unjust  if  not  inhuman  punishment.  He 
never  permitted  himself  to  go  back  to  the  circumstance  of  his  conviction  ; 
he  never  reflected  that  the  friends  of  the  other  man  had  come  to  his 
rescue  and  had  secured  for  him  the  best  legal  talent,  while  the  young 
man  who  had  defended  him  was  entirely  without  experience.  He  only 
knew  and  only  thought  of  the  small  crime  he  had  committed  and  his  own 


THE  CRIMINAL  LAW 


209 


blameless  past  record,  and  its  result  of  a  long  sentence  as  contrasted 
with  the  criminal  career  of  the  other  one  and  his  short  sentence. 

Another  important  factor  always  entered  into  the  trial,  if  the  state's 
attorney  would  not  accept  a  plea  of  guilty,  where  the  prominent  criminal 
lawyer  was  employed.  The  attorney  would  never  fail  to  have  one  or 
more  friends  on  the  jury,  who  would  stand  out  for  an  acquittal  or  a  short 
term,  and  a  compromise  verdict  would  result,  and  the  compromise  was 
always  for  a  short  sentence. 

Let  me  illustrate  another  vicious  feature  of  the  old  law.  A  number  of 
years  ago  the  farmers  succeeded  in  having  the  law  so  amended  that  the 
minimum  term  for  horse  stealing  was  fixed  at  three  years.  In  this  county 
a  man  might  steal  the  most  disreputable  old  horse  ever  seen  on  the  streets ; 
he  was  indicted  for  horse  stealing,  and,  if  found  guilty,  would  have  to  serve 
at  least  a  three  years'  sentence.  In  one  of  the  adjoining  counties  a  man 
might  steal  the  finest  imported  horse  that  ever  left  the  shores  of  France ; 
he  could  be  indicted  for  larceny  and  receive  a  year's  sentence. 

The  habitual-criminal  act  failed  in  very  many  instances  to  solve  the 
problem  for  which  it  was  enacted,  while  in  many  other  cases  it  only 
worked  as  a  means  of  oppression.  A  man  might  have  served  a  number 
of  terms  in  other  states,  or  even  in  this  state,  and  the  state's  attorney 
know  nothing  of  it,  and  consequently  no  allegation  could  be  made  in  the 
indictment.  The  strange  and  unexplained  feature  of  the  habitual-crimi- 
nal act  was  that  it  applied  only  to  burglary,  grand  larceny,  horse  stealing, 
robbery,  forgery,  and  counterfeiting,  leaving  out  the  crimes  of  manslaugh- 
ter, rape,  and  a  number  of  other  crimes  which  are  as  serious  as  those 
embraced  in  the  act.  If  a  man  was  sentenced  from  this  county  for  any 
of  the  crimes  embraced  in  the  habitual-criminal  act,  and  afterwards  com- 
mitted a  like  crime  in  the  county,  he  could  very  easily  be  convicted  as  an 
habitual  criminal ;  but  if  he  had  committed  the  first  crime  in  some  other 
county,  the  probability  would  be  he  would  not  be  indicted  under  the  ha- 
bitual-criminal act ;  and  if  he  had  committed  crimes  and  served  terms  in 
other  states,  he  was  quite  certain  not  to  be  indicted  under  that  act.  When 
one  man  was  indicted  under  the  act  and  convicted,  and  another  man,  at 
the  same  term  of  court,  who  had  served  previous  terms  was  not  so  indicted, 
you  emphasized  the  inequality  of  sentences  in  a  marked  degree  and 
turned  the  first  man  out  of  prison  a  confirmed  criminal.  I  have  said  the 
habitual-criminal  act  was  sometimes  a  cause  of  oppression.  One  of  the 
strongest  illustrations  of  the  wrong  which  could  be  inflicted  by  the  ha- 
bitual-criminal act  came  under  my  notice  in  a  case  from  St.  Clair  County. 
A  young  colored  man  who  had  just  reached  his  majority  was  convicted  of 
burglarizing  a  chicken  house  and  taking  therefrom  a  half  dozen  chickens. 
For  this  he  received  a  year's  sentence.  He  returned  to  his  home  at  the 
expiration  of  his  sentence,  and  for  some  six  or  seven  years  led  an  honest 
and  upright  life.  One  night  he  be(?ame  hungry  for  chicken,  and  went  out 
and  again  broke  into  a  chicken  house  and  stole  three  chickens.    He  was 


2IO  AMERICAN  STATE  GOVERNMENT 

indicted  under  the  habitual-criminal  act.  The  jury  found  him  guilty,  and 
there  was  no  escape  from  the  maximum  sentence  of  twenty  years.  I 
admit  this  was  a  most  unusual  case.  Eerhaps  the  state's  attorney  would 
not  have  been  blamed  if  he  had  nollied  the  habitual  count  in  the  indict- 
ment, but  he  felt  it  to  be  his  duty  to  have  it  inserted.  The  trial  judge, 
one  of  the  most  able  and  conscientious  in  the  state,  felt  that  the  fault 
was  not  in  the  administration  of  the  law  in  this  particular  case,  but  in  the 
law  itself.  But  there  was  no  escape  from  this  provision  of  the  law ;  the 
indictment  of  the  person  as  an  habitual  criminal,  its  proof  and  finding  of 
guilty,  and  the  maximum  penalty  had  to  follow. 

I  believe  there  is  no  one  who  will  deny  the  proposition  that  the  man 
who  commits  his  second  crime  should  be  more  severely  punished  than 
the  one  who  commits  his  first,  the  crimes  being  practically  the  same. 
And  neither,  I  believe,  will  any  one  deny  that  the  man  who  commits  his 
third  crime  should  be  punished  more  severely  than  the  one  who  commits 
his  second,  the  crimes  being  practically  similar.  If  these  results  could 
have  always  been  secured  under  the  old  law,  or  if  they  could  have  always 
been  secured  under  the  habitual-criminal  act,  then  there  could  have  been 
no  complaint  against  the  law ;  providing,  of  course,  they  could  have  been 
accompanied  by  something  near  an  equality  of  sentences,  not  only  from 
the  same  county,  but  from  the  various  counties  of  the  state. 

Before  drawing  a  contrast  as  to  the  results  of  the  definite-sentence 
law  and  the  parole  law,  let  me  state  liow  the  parole  law  is  administered. 

When  a  prisoner  is  sentenced  under  the  parole  law,  it  is  the  duty  of 
the  trial  judge  and  state's  attorney  to  attach  to  the  mittimus  an  oflficial 
statement  of  the  facts  and  circumstances  constituting  the  crime  whereof 
the  prisoner  was  convicted,  together  with  all  other  information  accessible 
to  them  in  regard  to  the  career  of  the  prisoner  prior  to  the  time  of  the 
committal  of  the  crime  of  which  he  was  convicted,  relative  to  the  habits, 
associates,  disposition,  and  reputation,  and  any  other  facts  and  circum- 
stances which  may  tend  to  throw  any  light  upon  the  question  as  to 
whether  such  prisoner  is  capable  of  again  becoming  a  law-aliiding  citizen. 

After  the  man  has  been  in  prison  about  five  or  six  months  he  is  fur- 
nished with  a  blank  containing  a  number  of  interrogatories  regarding  his 
life  for  ten  or  fifteen  years  prior  to  his  conviction.  The  object  of  these 
inquiries  is  to  learn  whether  or  not  the  man  has  been  leading  a  criminal 
life ;  to  learn  if  he  has  been  a  sober,  industrious,  and  law-abiding  citizen. 
The  parole  law  being  intended  to  aid  men  to  reform  if  they  so  desire,  as 
well  as  to  carry  out  the  other  intentions  of  the  penal  statute,  it  is  necessary 
to  know  the  history  of  the  man,  ■ —  to  learn  what  have  been  his  habits  of 
life,  and  from  these  conclude,  as  well  as  can  be  done,  whether  or  not  the 
reformatory  feature  of  the  law  will  iiiid  a  response  in  his  conduct  while 
on  parole.  I  am  aware  that  here  and  tiiere  can  be  found  those  who  hold 
t(;  the  idea  that  the  prison  ofiicials  can  judge  whether  or  not  a  man 
is  reformed.     ICxperiencc  and  observation  tell  me  this  doctrine  is  the 


THE  CRIMINAL  LAW  21 1 

sheerest  nonsense.  The  bank  cashier  is  a  model  citizen  ;  he  is  regular  in 
his  attendance  at  church  ;  he  gives  liberally  to  charity  ;  he  visits  the  sick 
neighbor ;  he  is  the  pattern  of  the  esteemed  citizen  and  the  model  hus- 
band and  father.  Then  the  community  is  shocked  when  it  wakes  up  some 
morning  and  learns  that  he  has  run  off  with  the  bank's  money  and  his 
neighbor's  wife.  The  men  working  beside  him  for  years  never  suspected 
he  was  a  scoundrel  and  a  thief ;  the  community  had  learned  to  love  and 
respect  him.  Then  how  absurd  it  is  to  take  the  ground  that  the  prison 
guard,  having  control  of  fifty  men,  can  say  whether  or  not  a  man  has 
reformed.  It  is  the  habitual  criminal  —  the  man  who  has  been  there  be- 
fore —  who  makes  the  model  prisoner,  but  he  is  always  on  the  lookout 
for  a  chance  to  escape.  The  time  comes  when  the  man  must  be  trusted 
on  the  outside,  and  all  the  state  can  do  is  to  lend  its  aid  in  again  placing 
him  on  his  feet,  so  he  can,  if  he  will,  become  an  honored  citizen.  And  this 
the  old  law  never  did.  The  state  had  exacted  its  pound  of  flesh  and  was 
content.  If  the  trial  judge  and  state's  attorney  say  the  man  has  always 
been  a  resident  of  the  county  from  which  he  was  sent,  and  that  he  has 
never  before  been  convicted,  the  work  of  hunting  up  his  record  is  simpli- 
fied. If,  however,  he  is  a  stranger  in  the  county,  then  a  most  thorough 
investigation  is  made  and  correspondence  is  had  with  other  prisons  and 
with  other  officials.  Of  course  the  fact  that  punishment  is  inflicted  not 
only  as  penalty  for  outraged  law  but  also  as  a  warning  to  those  who 
might  be  guilty  of  similar  crimes  must  never  be  lost  sight  of.  And  in 
deciding  how  long  a  person  shall  be  retained  in  prison,  the  varied  objects 
for  which  criminal  laws  are  enacted  must  all  be  considered  in  their  appli- 
cation to  the  individual. 

If  the  prisoner  makes  good  the  time  which  the  law  allows  him  and  has 
never  before  been  in  prison,  he  comes  before  the  board  at  the  expiration 
of  eleven  months  for  examination  for  parole.  If  he  has  served  a  previous 
term  in  prison,  he  is  not  brought  before  the  board  until  he  has  served  a 
two  years'  sentence  ;  and  if  he  has  served  two  prior  terms,  then  not  until 
he  has  served  a  three  years'  sentence,  and  so  on.  The  reason  for  this  is 
that  there  could  be  no  justification,  except  in  some  very  exceptional  cases, 
for  the  release  of  a  man  serving  his  second  term  at  the  end  of  eleven 
months.  It  might  occur,  of  course,  subsequent  to  his  conviction,  that 
some  new  evidence  had  developed  in  mitigation  of  his  crime  to  establish 
his  innocence ;  and  if  this  should  occur,  then  his  case  would  be  entitled 
to  the  very  earliest  consideration. 

When  a  prisoner  is  brought  before  the  board,  he  is  permitted  to  give 
his  own  statements  as  to  his  crime,  and  is  closely  questioned  as  to  his 
past  life  and  all  other  matters  which  pertain  to  a  careful  investigation  of 
the  circumstances  and  surroundings;  the  statements  of  the  trial  judge  and 
state's  attorney,  together  with  statements  of  those  who  have  known  him  for 
years  prior  to  his  conviction,  are  all  considered,  and  then  cither  a  parole  is 
granted  or  the  case  is  continued  to  a  time  when  the  man  will  be  paroled. 


212  AMERICAN  STATE  GOVERNMENT 

In  considering  the  question  of  the  parole  of  a  prisoner  many  perplex- 
ing questions  present  themselves.  Three  things  stand  out  clearly  as  the 
object  of  the  criminal  law, —  punishment,  reformation,  and  warning  to 
others.  Some  of  the  eminent  penologists  who  have  never  been  inside 
the  walls  of  a  prison  hold  that  the  object  is  reformation ;  others  equally 
eminent,  and  with  equal  experience,  hold  that  one  of  the  other  objects  is 
the  only  one  to  accept  as  a  guide. 

In  many  cases  there  is  no  doubt  that  when  the  gate  clicks  behind  the 
prisoner  and  he  is  marched  to  the  Bertillon  room  to  be  photographed  and 
measured,  he  has  suffered,  much  more  punishment  than  another  man 
would  after  he  has  spent  ten  years  behind  the  bars. 

I  call  to  mind  one  case  in  point.  A  prominent  young  man  was  sent 
from  one  of  the  cities  of  the  state  for  forgeiy.  He  was  a  member  of  two 
or  three  clubs,  a  patron  of  the  theater,  a  hail  fellow  well  met.  He  had  a 
beer  salary  and  a  champagne  appetite  and  associates.  His  bills  had  to 
be  paid  and  he  had  to  maintain  his  social  position.  To  do  so  he  resorted 
to  forgery,  and  before  he  was  convicted  had  committed  the  crime  some 
forty  or  fifty  times.  At  the  end  of  eleven  months,  in  accordance  with  the 
rules  of  the  board  he  came  before  them  for  parole.  There  was  no  ques- 
tion as  to  his  exemplary  life  up  to  a  certain  time ;  there  was  no  question 
but  he  was  receiving  as  good  a  salary  as  others  who  were  performing 
similar  service  ;  there  was  no  question  as  to  the  eminent  respectability  of 
his  parents  and  relatives.  He  was  making  enough  money  to  have  paid 
all  his  legitimate  expenses  and  placed  a  small  amount  in  the  savings  bank 
at  the  end  of  each  month,  providing  he  had  been  content  to  not  permit 
his  outgo  to  greatly  exceed  his  income.  He  would  not  do  this,  but 
betrayed  the  trust  reposed  in  him,  and  for  months  carried  on  a  most 
ingenious  system  of  forgery.  So  far  as  punishment  is  concerned,  the 
probabilities  are  that  when  the  convict  barber  began  to  shorten  the  hair 
of  the  man,  he  had  received  as  great  a  measure  as  would  be  many  years 
to  others.  But  if  he  had  been  released  then,  what  of  the  example  to  others 
holding  similar  positions  of  trust .''  What  protection  would  be  afforded  the 
business  men  of  the  state  who  are  compelled  to  intrust  their  interests 
almost  entirely  to  employees  ?  And  what  would  be  the  effect  upon  the 
more  than  a  thousand  men  in  the  ])ris()n  who  knew  that  he  came  there 
dressed  in  the  heiglit  of  fashion  and  had  on  the  outside  prominent  club- 
men, and,  through  their  appeals,  many  prominent  officials  and  citizens  ask- 
ing for  his  parole  ?  This  is  one  case  where  the  deterrent  effect  of  the 
prison  servitude  must  very  largely  enter  into  the  consideration  of  the 
length  of  time  the  man  must  serve  behind  the  prison  bars.  And  yet,  as 
the  prisoner  marches  along  between  men  whom  he  would  not  have  per- 
mitted to  black  his  boots,  as  he  looks  out  upon  his  lengthening  days  of 
imprisonment,  there  is  the  danger  of  making  him  a  criminal  for  life  if  he 
is  confined  too  long.  Oradually  his  friends  will  weary  of  work  for  his 
release,  gradually  he  will  i)e  forgotten,  gradually  his  former  social  position 


THE  CRIMINAL  LAW 


213 


becomes  nothing  but  a  memon,',  and  when  he  is  released  he  cannot  well 
fit  into  his  new  surroundings,  and  he  may  seek  a  life  of  crime  because 
he  is  disgraced  anyway.  There  are  many  people  who  honestly  believe 
that  social  position,  political  influence,  and  money  control  the  courts  and 
all  the  avenues  of  justice,  and  this  belief  must  always  be  considered  in 
the  administration  of  the  criminal  law. 

The  law  must  not  be  administered  according  to  the  political  ethics  of 
a  party  caucus,  but  there  should  ever  be  present  the  desire  and  disposi- 
tion to  act  so  as  not  to  bring  into  contempt  or  ridicule  the  administration 
of  the  penal  statutes.  The  leader  of  the  mob  pleads,  in  extenuation  of 
his  crime,  the  lax  enforcement  of  the  law,  and  while,  in  almost  every  case, 
he  is  a  composite  of  the  liar,  the  thug,  and  the  scoundrel,  yet  he  can  always 
find  plenty  who  will  join  him  in  his  denunciation  of  the  courts.  It  is  there- 
fore better  always  to  take  into  consideration  the  public  welfare  rather  than 
adopt  the  motto  ascribed  to  Vanderbilt. 

When  the  board  has  made  an  order  for  the  parole  of  a  prisoner,  the 
matter  of  his  employment  is  left  to  the  warden  of  the  prison  in  which  he 
is  confined.  The  law  provides  that  before  he  shall  be  released  on  parole, 
employment  shall  be  secured  for  him  during  the  period  of  his  parole. 
After  being  released  on  parole,  all  that  is  necessary  for  the  prisoner  to  do 
is  to  obey  the  law,  abstain  from  visiting  saloons  or  using  intoxicating 
liquors,  and  keep  away  from  evil  associates  and  practices.  Under  the  law 
the  prisoner  must  serve  at  least  six  months  on  parole,  but  the  board  has 
the  power  to  extend  the  period. 

The  contention  is  frequently  made  that  the  jury%  which  hears  the  tes- 
timony, sees  the  witnesses,  and  has  the  defendant  before  them,  is  better 
able  to  judge  how  long  a  man  should  be  retained  in  prison  than  is  some 
board  which  comes  along  eleven  months  afterwards  and  does  not  have  the 
witnesses  before  them.  If  one  jury  could  tr^'  all  the  cases  in  the  state  so 
that  they  could  then  equalize  sentences,  there  might  be  some  force  in  this 
contention.  But  those  who  take  this  view  forget  a  few  important  things 
which  deserve  consideration.  About  75  per  cent  of  the  prisoners  are 
nonresidents  of  the  county  from  which  they  are  sent.  There  is  no  way 
for  the  sheriff,  the  police,  or  the  state's  attorne}'  to  hunt  up  their  record. 
Neither  the  sheriff  nor  any  other  officer  of  the  county  is  furnished  with 
money  to  even  send  to  the  various  cities  photographs  of  prisoners.  In  only 
three  or  four  counties  outside  of  Cook  is  the  Bertillon  system  in  opera- 
tion. In  our  own  county,  if  a  man  is  arrested  whom  the  officers  think 
may  be  a  man  with  a  record,  if  they  undertake  to  hunt  up  his  record, 
they  must  do  so  at  their  own  expense  and  take  the  chances  at  being 
reimbursed.  In  the  city  of  Chicago  there  is  the  most  complete  Bertillon 
system  in  the  countr}%  and  it  is  under  the  control  of  the  most  able 
superintendent  in  the  United  States.  And  yet  we  frequently  find  among 
Cook  County  prisoners  men  of  whom  he  has  no  record,  but  who  have 
served  one  or  more  terms  in  prison  ;  but  they  have  serv^ed  in  states  where 


214 


AMERICAN  STATE  GOVERNMENT 


there  is  no  system  of  identification,  because  there  are  states  where  they 
do  not  even  take  the  photograph  of  a  prisoner. 

Let  me  sight  a  few  of  many  instances  which  show  the  benefit  of  requir- 
ing men  to  disclose  their  past  record.  There  are  confined  in  one  of  our 
prisons  two  of  the  most  noted  forgers  in  this  country  or  Canada,  in  the 
latter  each  having  served  two  terms,  and  they  are  now  wanted  in  several 
states.  They  went  to  one  of  the  smaller  cities  of  the  state,  and,  having 
operated  in  many  of  the  larger  eastern  cities,  had  no  doubt  of  their  suc- 
cess in  what  was  little  more  than  a  country  town.  Fortunately  they  were 
arrested.  There  was  no  doubt  of  their  guilt,  and  as  no  opportunity  pre- 
sented itself  for  them  to  break  jail,  they  pleaded  guilty,  but  not  until  the 
state's  attorney  had  told  them  he  would  recommend  their  release  at  the 
end  of  one  year.  When  they  reached  the  prison  the  sheriff  brought  with 
him  a  strong  letter  from  the  trial  judge  and  state's  attorney  to  the  effect 
that  the  men  had  never  before  committed  crime,  and  they  should  be 
released  at  the  end  of  one  year's  sentence.  Neither  the  judge  nor  the 
state's  attorney  knew  anything  of  the  past  history  of  the  men  only  as  they 
had  learned  it  from  them.  But  when  the  board  was  through  with  its 
investigation,  the  men  admitted  their  criminal  career. 

Another  man  came  to  the  prison  backed  not  only  by  a  strong  indorse- 
ment from  the  trial  judge  and  state's  attorney,  but  also  from  the  attorney 
of  the  railroad  whose  goods  were  stolen,  each  insisting  the  man  had  never 
before  committed  crime  and  should  be  released  at  the  end  of  one  year's 
sentence.  The  man  had  not  been  out  of  Washington  state  prison,  where 
he  had  served  a  seven  years'  sentence,  sixty  days  before  his  arrest  for  the 
crime  of  which  he  was  convicted.  He  had  also  served  a  five  years'  sen- 
tence in  California,  had  broken  jail  four  times,  and  admitted  some  fifteen 
burglaries. 

Another  state's  attorney  recommended  the  parole  of  a  prisoner  at  the 
end  of  one  year,  but  when  the  board  had  investigated  the  case  and 
wrote  the  state's  attorney  the  man  had  served  three  terms  in  Nebraska, 
two  in  Kansas,  one  in  Missouri,  one  in  Chester,  and  was  then  sci^ving 
his  second  term  in  Joliet,  his  enthusiasm  for  the  man's  early  j^arolc  waned 
very  considerably.  I  might  remark  in  passing  that  this  prisoner  has  no 
respect  for  the  parole  law  since  he  learned  the  board  had  decided  to 
hold  him  until  the  expiration  of  his  maximum  term,  whereas  he  has  never 
had  more  than  a  two  years'  sentence  at  any  of  the  prior  convictions. 

All  laws  should  be  judged  by  their  results.  It  cannot  be  positively 
said  that  any  criminal  law  reforms  any  great  number  of  men,  because  we 
know  positively  a  man,  once  in  prison  (as  well  as  many  who  should  be 
there),  is  reformed  only  when  he  is  dead  and  buried.  Under  the  old  law 
the  man  .served  his  .sentence,  left  the  prison,  and  that  might  be  the  last 
ever  heard  of  him.  It  was  the  business  of  no  one  to  keep  (rack  of  him 
and  see  that  he  was  employed.  'I "he  world  had  moved  on  while  he  stood 
still.    He  returned  to  his  old  home.    The  streets,  when  he  knew  them, 


THE  CRIMINAL  LAW  215 

were  veritable  mudholcs  half  the  )car  and  crowded  with  weeds  the  re- 
mainder of  the  year.  He  returned  to  find  the  streets  paved,  the  log  huts 
given  way  to  neat  frame  and  brick  cottages  ;  there  were  electric  lights 
and  free  mail  delivery.  It  was  all  new  to  him  ;  he  had  read  of  it,  but  had 
failed  to  realize  its  full  significance.  It  was  then  he  needed  a  helping 
hand ;  it  was  then  he  needed  some  one  to  aid  him.  In  those  new  sur- 
roundings he  was  often  overcome  by  despondency  and  soon  found  his 
way  to  the  haunts  of  vice,  and  erelong  was  again  marching  with  the 
lockstep  of  the  convict. 

LTnderthe  parole  law  the  reverse  obtains.  The  man  has  a  home  to 
go  to  when  he  leaves  prison, — he  has  employment,  —  there  is  some  one 
to  help  him.  The  conditions  of  the  man  released  on  parole  are  entirely 
different  from  those  of  the  man  released  under  the  old  law.  The  best 
evidence  of  the  reformative  feature  of  the  parole  law  is  found  in  the  fact 
that  not  fifty  persons  who  have  been  paroled  in  Illinois  have  been  after- 
wards sent  to  prison  again  for  crimes  committed  after  having  served 
their  parole.  Comparing  the  few  men  who  have  been  returned  to  prison 
after  having  served  their  parole  with  the  number  of  those  who  have 
served  previous  terms  in  states  not  having  a  parole  law,  I  have  no  hesi- 
tancy in  pronouncing  the  parole  a  great  success  as  a  purely  reformative 
measure. 

Is  the  parole  law  a  success  in  meting  out  punishment  to  offenders,  and 
does  it  carry  out  the  theory  I  have  claimed  for  it  in  this  regard  ? 

During  the  last  year  the  definite-sentence  law  was  in  force  about  40 
per  cent  of  the  prisoners  were  released  by  virtue  of  the  expiration  of 
their  sentence.  During  the  year  1903  less  than  30  per  cent  were  released 
on  parole. 

Those  released  during  the  last  year  the  definite-sentence  law  was  in 
force  served  inside  the  prison  walls  an  average  of  one  year,  seven 
months,  and  eleven  days. 

Those  who  were  paroled  last  year  served  inside  the  prison  walls  an 
average  of  two  years,  four  months,  and  sixteen  days,  and  one  year  on 
parole. 

Thus  it  will  be  seen  that  the  men  serving  under  the  parole  law  served 
nine  months  longer,  on  an  average,  inside  the  prison  walls,  than  was 
served  by  those  sent  under  the  definite-sentence  law.  While  this  is  true, 
a  greater  per  cent  of  men  serving  their  first  term  were  released  under 
the  parole  law  last  year  than  in  any  preceding  year.  The  increased  aver- 
age time  served  by  those  sentenced  under  the  parole  law  arises  from  the 
increased  length  of  time  the  habitual  criminals  are  kept  in  prison.  There 
has  never  been  a  time  in  the  history  of  the  prisons  of  this  state  when 
there  was  such  a  great  per  cent  of  prisoners  serving  the  maximum  term 
provided  by  law  for  their  crimes,  as  now.  The  law  is  administered  to 
help  the  unfortunate  man  who  commits  his  first  crime,  and  it  is  adminis- 
tered to  protect  society  from  those  who  live  by  crime.    Instead  of  the 


2l6  AMERICAN   STATE  GOVERNMENT 

man  who  commits  his  first  crime  being  punished  longer  than  the  habitual 
criminal,  the  rule  is  reversed. 

During  the  last  year  the  definite-sentence  law  was  in  force  there  were 
received  at  the  Joliet  prison  113  second  termers,  36  third  termers,  13 
fourth  termers,  5  fifth  termers,  and  2  sixth  termers. 

During  the  year  1903  there  were  received  at  the  Joliet  prison  51 
second  termers.  5  third  termers,  4  fourth  termers,  and  i  fifth  termer. 
The  great  majority  of  these,  having  served  in  other  states,  knew  nothing 
of  the  operation  of  the  parole  law. 

Notwithstanding  what  I  have  said,  most  of  you  have  doubtless  read 
in  some  of  the  Chicago  papers  some  very  severe  criticisms  upon  the 
action  of  the, Board  of  Pardons,  to  the  effect  that  habitual  criminals  were 
being  released,  while  those  who  had  no  political  pull  were  being  re- 
tained behind  the  prison  walls.  As  the  records  of  the  board  are  public, 
the  board  has  not  thought  it  necessary  to  rush  into  print  on  these  ques- 
tions. It  might  not,  however,  be  out  of  place  to  call  attention  to  one  case 
which  is  a  fair  illustration  of  the  situation.  One  Chicago  judge  gave  out 
a  most  bitter  and  vindictive  interview  in  regard  to  the  board,  charging 
that  habitual  criminals  were  released  at  the  end  of  eleven  months,  while 
poor  fellows  who  had  no  political  influence  were  retained  in  the  prison 
the  maximum  term.  An  investigation  showed  some  rather  startling  facts 
as  to  the  history  of  that  judge.  For  the  last  five  years  the  definite-sen- 
tence law  was  in  force  he  had  sentenced,  either  on  the  verdict  of  the 
jury  or  a  plea  of  guilty,  73  persons  to  the  Joliet  penitentiary.  These  per- 
sons served,  inside  the  prison  walls,  an  average  of  one  year,  nine  months, 
and  thirteen  days.  Among  the  number  were  four  men  who  had  sei"ved 
one  prior  term  each,  but  only  served  eleven  months  under  tlie  definite 
sentence ;  while  one  other  had  served  two  prior  terms,  but  only  served 
eleven  months  under  the  definite  sentence.  This  same  judge  had  sen- 
tenced 47  men  to  the  penitentiary  since  the  parole  law  has  been  in  force  ; 
a  number  of  these  latter  have  had  their  cases  continued  to  the  maximum 
term,  and  when  they  have  all  been  liberated  they  will  have  served  on  an 
average,  inside  the  prison  walls,  two  years  and  six  months,  or  nine  months 
longer  than  under  the  old  law,  and  not  one  of  them  who  had  served  a 
previous  term  was  released  at  the  cxjiiration  of  eleven  months.  'I'hose 
whose  ca.ses  were  not  continued  to  ihe  maximum  will  be  required  to 
serve  twelve  months  on  parole. 

Where  the  crime  is  not  of  the  greatest  magnitude  and  tlic  prisoner 
has  previously  borne  a  good  character,  the  reformatory  intent  of  the  law 
should  be  applied,  and  in  nearly  every  case  is  a|)plicd,  at  the  end  of  the 
first  year.  There  are,  of  ccnirsc,  exce])lions  to  the  rule,  but  tiie  rule  is 
proven  by  the  exceptions.  Where  a  man  has  jjcrsisted  in  committing 
crime  —  where  continued  punishment  has  not  reformed  him  and  he  has 
paid  no  heed  to  continued  imprisonment  —  the  one  thing  to  be  consid- 
ered is,   how  long  shall  society  be  protected.    The  law,  in  such  cases, 


THE  CRIMINAL  LAW  217 

has  fixed  the  limit,  and  in  a  great  majority  of  instances  there  is  little 
justification  for  reducing  that  limit. 

The  number  of  habitual  criminals  is  being  reduced  because  that  class 
is  learning  that  a  conviction  in  this  state  means  a  long  term  in  the 
penitentiary. 

No  law  will  stop  crime.  A  wise  and  humane  law  will  hold  out  to  the 
one  who  commits  his  first  crime  the  lamp  of  hope  all  trimmed  and  brightly 
burning.  A  just  law  will  protect  society  and  the  individual  from  those 
who  prefer  to  lead  the  life  of  a  criminal.  The  old  law  was  too  often 
neither  humane  nor  just.  By  the  partial  and  unequal  manner  in  which 
it  necessarily  had  to  be  administered  it  made  criminals  of  many  and  re- 
formed few.  Neither  courts  nor  juries  should  be  blamed  for  the  manner 
in  which  it  was  administered,  because  the  objections  which  I  have  urged 
against  it  were  beyond  their  control.  Under  the  parole  law  the  first 
offender  is  given  ample  aid  and  encouragement  if  he  is  desirous  of  re- 
forming, while  the  habitual  criminal  is  learning  that  if  he  desires  light 
punishment  he  must  confine  his  crimes  to  some  other  state  than  Illinois. 

THE  PENNSYLVANIA  CONSTABULARY  ^ 

Dispatches  from  the  coal  fields  these  days  tell  a  stereotyped  story  lim- 
ited to  a  few  hundred  words.  They  usually  begin  "  a  riot  broke  out  here," 
and  end  "  quiet  was  restored  when  the  constabulary  arrived."  In  New 
York  the  word  "constable"  calls  to  mind  a  rural  person  with  a  thin  beard, 
a  wide-brimmed  straw  hat,  a  linen  duster,  and  a  nickel  shield  pinned  on 
his  chest.  The  Pennsylvania  constable  is  different.  He  is  something  brand 
new  for  the  states  in  the  police  line,  and  was  created  to  take  the  place  of 
the  militia  in  handling  strikes. 

The  Pennsylvania  constabulary  is  a  permanent  force  of  mounted  men, 
—  four  troops  of  two  officers,  five  sergeants,  and  one  hundred  and  fifty 
men  each, —  every  man  of  them  chosen  for  his  physical  build,  discretion, 
fearlessness,  and  ability  to  tame  men.  Eight  out  of  ten  of  them  have  seen 
military  service  in  four  lands,  and  most  of  them  were  noncommissioned 
officers  before  they  left  the  army.  They  resemble  the  Canadian  mounted 
police  and  the  Texas  Rangers  more  than  anything  else,  although  the 
organization  itself  was  built  largely  on  the  lines  of  the  Irish  constabulary. 

Every  trooper  can  ride  and  shoot  and  give  a  good  account  of  himself 
in  a  rough-and-tumble  fight  besides.  But  these  talents,  while  they  count 
in  a  pinch,  do  not  establish  a  morale  in  the  force.  The  secret  of  that  is 
the  realization  of  one-man  strength,  the  power  of  quiet  confidence,  and  a 
belief  in  the  effect  of  the  uniform.  Captain  John  C.  Groome,  state  su- 
perintendent, who  recruited,  organized,  and  equipped  the  constabulary, 
has  taken  as  his  standard  for  measuring  the  strength  of  a  mob  :  "  Each 
mounted  trooper  is  good  for  a  hundred  men." 

1  New  York  Evenbtg  Post,   1906.    Reproduced  by  permission. 


2l8  AMERICAN  STATE  GOVERNMENT 

The  four  troops  are  distributed  over  the  state  so  as  to  cover  as  best 
they  can  the  one  hundred-odd  coal  and  iron  mines.  The  Reading  troop 
is  ready  to  answer  day  alarms  from  this  vicinity,  the  Wilkes-Barre  troop 
guards  the  country  farther  north,  and  the  Greensburg  and  Punxsutawney 
troops  are  watching  the  central  and  western  fields,  —  fifty  men  for  each 
scene  of  trouble,  covering  a  radius  of  thirty  miles  !  Even  a  more  solitary 
patrol  than  our  own  mounted  police  have  in  the  outlying  districts  of  Rich- 
mond and  Queens.  When  the  coal-strike  difficulties  are  settled,  the  con- 
stabulary will  patrol  this  country  in  pairs.  The  stations  may  then  be 
increased  to  eight,  each  occupied  by  one  section  of  a  troop,  and  each 
section  divided  into  three  reliefs  of  six  hours  apiece.  Each  beat  will  then 
be  about  sixteen  miles  long,  and  when  the  constabulary  are  on  duty  they 
will,  in  addition  to  the  duties  of  a  policeman,  have  to  act  as  fish,  game, 
and  fire  wardens. 

Eleven  to  do  the  Work  of  Two  Thousand 

Heretofore  Pennsylvania  has  relied  largely  upon  its  National  Guard  to 
awe  the  turbulent  factions  that  gather  around  the  coal  mines  in  time  of 
strike.  Two  thousand  armed  men  to  one  troublesome  town  was  the 
militia's  ratio  for  pacification.  By  the  ethics  of  the  constabulary  a  ser- 
geant and  ten  men  are  expected  to  handle  such  a  district.  The  mounted 
constable  enforces  the  law  very  much  as  did  the  sheriffs  in  those  stren- 
uous years  when  the  West  was  young.  He  must  be  absolutely  fearless. 
If  he  shows  the  white  feather  once,  his  usefulness  is  done  for  and  the 
force  has  no  place  for  him. 

"  My  instructions  to  each  trooper,"  said  Captain  Groome  recently, 
"  leave  a  lot  to  his  discretion.  If  he  starts  out  to  get  his  man,  he  must 
get  him,  if  he  has  to  butt  into  the  middle  of  a  mob  to  find  him.  The 
troopers  are  counseled  not  to  use  their  guns  unless  they  have  to." 

At  the  Cornwall  ore  banks  early  in  March  five  hundred  foreigners  be- 
came angry  because  they  could  not  persuade  the  men  keeping  the  fires 
to  quit  work.  They  assaulted  several  inoffensive  workmen  and  chased  the 
sheriff's  deputies.  The  sheriff  telephoned  for  aid.  "  Send  your  whole 
force  of  constabulary,"  he  urged.    "  These  rioters  are  desperate !  " 

A  sergeant  and  ten  men  were  dispatched  on  the  run.  There  was  no 
time  to  get  the  horses  entrained,  and  the  detail  went  whirling  to  the  scene 
of  trouble  in  a  caboose  and  engine.  No  sooner  had  they  arrived  than  the 
smallest  man  in  the  bunch  forced  his  way  bodily  into  a  crowd  of  angry 
aliens  and  grabbed  a  big  foreigner  who  had  "  pulled  a  gun."  The  prisoner 
showed  fight  and  his  friends  offered  to  help  him.  The  trooper  swung  his 
stick  just  once,  the  big  fellow  dropped,  and  the  crowd  ran  like  sheep. 

At  Yatesville  twelve  troopers  dispersed  a  mob  of  seven  hundred,  and 
went  through  a  tough  settlement  on  a  hunt  for  firearms,  bringing  out  a 
small-sized  arsenal  after  the  inhabitants  had  pleaded  they  were  "  good 


THE  CRIMINAL  LAW  219 

citizens"  and  had  no  guns.  The  houses  raided  had  sheltered  "pot 
shooters  "  who,  for  several  nights,  had  kept  up  a  desultory  fire  on  the 
windows  and  doors  of  the  colliery  a  few  hundred  yards  away  at  the  foot 
of  the  hill. 

At  the  Franklin  colliery,  also  near  Wilkes- Bar  re,  strikers  dispersed  a 
guard  of  deputy  sheriffs  and  clubbed  and  knifed  a  few  workmen  who  had 
been  taking  coal  from  a  culm  bank  to  keep  up  steam  for  the  engines 
that  pumped  water  from  the  mines.  This  was  as  per  agreement  between 
operators  and  miners.  The  mob,  however,  beat  these  employees  severely 
and  started  out  to  wreck  the  colliery,  when  a  small  detail  of  mounted  con- 
stabulary arrived.  It  was  just  about  dusk.  The  sergeant  asked  the  men 
to  disperse  and  they  refused.  He  told  them  they  would  get  hurt  if  they 
did  n't,  and  they  jeered  at  him.  The  sheriff  pointed  out  two  ringleaders 
and  the  sergeant  asked  them  to  step  out  and  give  themselves  up.  This 
request  was  also  refused. 

"  Tell  them  I  'm  going  to  take  them,"  said  the  sergeant  to  the  interpre- 
ter;  "  and  all  those  who  want  to  have  their  heads  crushed  will  please  stay 
right  where  they  are  !  " 

Then  the  mounted  men  rode  into  the  brown  and  the  long  locust  sticks 
were  laid  right  and  left.  The  mob  tried  to  run,  but  it  could  not  get  away 
from  the  horses.  Franklin  Colliery  will  not  forget  that  sight  for  many  a 
day.  When  the  troopers  rode  back  to  their  barracks  they  had  two  badly 
damaged  prisoners  handcuffed  and  walking  between  them.  Several  more 
were  taken  the  next  day. 

At  Windber,  down  in  the  southwestern  part  of  the  state,  ugly  feeling 
between  the  miners  and  the  deputy  sheriffs  culminated  in  a  shooting  in 
which  three  miners  were  killed  outright  and  a  ten-year-old  boy  was  fa- 
tally wounded  as  he  was  looking  on.  The  shooting  occurred  at  the  jail  in 
an  attempt  to  rescue  several  men  who  had  been  arrested.  The  sheriff 
lost  no  time  in  telegraphing  for  the  constabulary.  Greensburg  barracks 
were  nearest  to  the  scene  of  trouble,  and  two  sergeants  and  twenty  men 
with  horses  were  loaded  aboard  a  special  and  started  for  Windber  about 
ten  o'clock  at  night. 

Ordinarily  it  is  a  run  of  four  hours,  but  a  wreck  on  the  line  held  the 
constabulary  until  daybreak,  and  it  was  not  until  seven  o'clock  that  they 
detrained.  Without  breakfast  the  troopers  went  right  at  work,  serving 
the  sheriff's  warrants,  making  arrests,  and  searching  for  concealed  rifles, 
shotguns,  and  stilettos.  To  do  this  they  were  compelled  to  enter  strange 
houses,  grope  in  the  dark,  and  run  the  risk  of  a  knife  thrust  when  and 
where  they  least  expected  it. 

Through  their  interpreter  the  sullen  foreigners  were  told  that  the  state 
insisted  upon  law  and  order,  and  that  the  mounted  troopers  would  see 
that  law  and  order  was  maintained.  The  detail  then  divided  into  pairs  and 
started  to  patrol  the  town.  These  men  had  two  days  and  two  nights  of 
continuous  duty  before  they  could  get  any  rest. 


2  20  AMERICAN   STATE  GOVERNMENT 

The  constabularv'  is  uniformed  in  dark  gray  whipcord,  with  black  put- 
ties, and  dark  gray  helmets.  The  blouse  is  ver}^  much  like  the  blouse 
of  the  field-service  uniform  of  the  regular  amiy,  and  for  fatigue  duty 
the  troopers  wear  a  dark  gray  cap,  also  shaped  like  those  of  the  army. 
The  combination  has  a  neat  soldierly  effect  and  is  not  without  its  dignity. 
For  winter  there  is  a  roomy  greatcoat  of  the  same  color  that  will  cover 
both  the  wearer's  legs  as  well  as  the  pommel  and  cantel  of  his  saddle. 
For  storms  in  summer  the  rubber  cavalr}^  cape  is  provided.  The  horses 
are  supplied  by  the  state,  as  well  as  the  uniforms.  Most  of  the  mounts 
come  from  the  West.  If  they  are  not  as  trim  and  sleek  as  those  of  our 
mounted  police,  they  probably  are  of  greater  endurance.  The  country 
which  they  have  to  travel  is  stiffer,  and  rocks  and  thorns  more  common 
than  shade  trees  and  macadam  roads. 

It  is  not  to  be  wondered  that  this  duty  is  attracting  the  best  noncom- 
missioned officers  from  the  regular  army.  The  work  is  more  exciting, 
the  men  have  a  chance  for  more  initiative,  and  are  paid  quite  handsomely. 
A  private  of  constabulary  receives  $720  a  year,  his  horse,  uniform,  and 
a  house  to  live  in.  The  regular  gets  less  than  $170  a  year  and  his  food, 
clothes,  and  care.  But  the  mess  account  at  a  constabular)^  barracks  is 
not  usually  an  extravagance.  It  runs  about  Sio  a  month  per  man,  and 
as  he  advances  in  promotion  his  pay  increases  accordingly.  A  sergeant 
receives  $1000  a  year,  a  lieutenant  $1200,  and  captains  $1500.  No 
married  men  are  accepted.  Terms  of  enlistment  are  for  two  years  un- 
less sooner  discharged  for  cause,  and  with  the  long  waiting  list  at  head- 
quarters, the  troopers  have  to  lead  rather  exemplary  li\'es  to  hold  their 
positions.  When  Captain  Groome  began  the  examinations  of  men,  to 
enlist  a  force  of  two  hundred  and  thirty-two,  he  had  over  one  thousand 
applications. 

The  country  which  the  constabulary  patrols  is  not  as  wild  as  Texas 
or  the  Northwest  territory,  but  there  are  parts  of  Pennsylvania  which,  to  say 
the  least,  are  obscure.  The  constabulary  to  some  extent  will  supersede 
the  Coal  and  Iron  Police,  now  paid  and  directed  by  private  corporations. 
Experience  has  taught  Pennsylvania  that  the  alien  element  needs  some- 
thing more  formidable  than  either  sheriff  or  militia  to  impress  mischief- 
makers  with  the  authority  of  the  law.  Therefore,  upon  the  combination  of 
policeman's  club  and  helmet,  soldier's  uniform  and  gun,  with  a  real  light- 
ing man  inside,  who  can  at  times  use  discretion,  Pennsylvania  relies  to 
solve  a  vexatious  problem. 

Texas,  when  it  first  put  the  famous  Texas  Rangers  in  the  field,  was 
confronted  with  a  similar  situation.  These  riders  owned  their  own  mounts 
and  received  $40  a  month,  with  arms  and  ammunition,  from  the  state. 
It  was  the  life,  not  the  pay,  that  attracted  men  to  this  force.  Like  the 
mounted  police  of  Canada,  they  chased  outlaws,  road  agents,  Indians, 
and  cattle  thieves,  settled  land  disputes,  made  Texas  orderly,  and  gained 
the  respect  of  every  class  of  the  lawless  and  criminal.    They  stayed  in 


THE  CRIMINAL  LAW  22  1 

the  saddle  for  hours  at  a  stretch,  rode  miles  upon  miles  of  dreary  wastes, 
but  never  failed  to  get  what  they  started  for,  and  accomplished  their  pur- 
pose without  noise  or  bluster. 

In  place  of  hot  sun  and  freezing  blizzards  which  the  Rangers  and 
Canada's  Mounted  Police  have  to  face,  Pennsylvania's  constabulary  must 
ride  dangerous  hill  and  mountain  roads  in  fogs  and  darkness,  bitter  cold 
winter  weather,  and  deep  snow.  There  probably  isn't  a  more  treacher- 
ous country  east  of  the  Mississippi  than  these  same  mountain  districts 
of  Pennsylvania. 

In  some  manner  the  impression  has  gone  out  that  the  constabulary  is 
a  creation  of  the  state  for  the  sole  protection  of  the  property  of  the  big 
coal  operators.  Nothing  could  be  farther  from  the  truth.  The  constab- 
ulary is  a  venture  in  economy,  but  labor  trouble  was  only  one  of  the 
causes  that  brought  about  its  organization.  The  Pennsylvania  legisla- 
ture, it  is  true,  became  tired  of  providing  for  the  payment  of  its  National 
Guard  when  on  strike  duty.  It  costs  a  pile  of  money  to  keep  even  one 
regiment  in  the  field  for  a  single  week.  Several  regiments  have  been 
necessar}'  every  time  Pennsylvania  has  resorted  to  martial  law,  and  the 
bills  that  resulted  seemed  a  wicked  extravagance  to  Pennsylvania  Dutch 
economy. 

Governor  Pennypacker  was  largely  responsible  for  the  bill  which  created 
the  constabulary,  but  the  measure  was  popular  enough  with  the  mem- 
bers to  go  through  without  any  question,  and  they  appropriated  over 
$400,000  on  the  spot,  to  be  used  at  the  discretion  of  the  superintendent 
in  raising  the  new  force.  In  fact,  so  willing  were  they  to  let  the  gov- 
ernor lift  the  troublesome  state-police  business  off  their  hands  that  they 
took  very  little  pains  with  the  bill  itself,  and  consequently  the  law  as 
entered  on  the  statute  book  is  not  the  strongest  one  in  the  world.  It  has 
sufficient  weak  spots  to  tempt  the  United  Mine  \\'orkers  of  America  to 
test  its  provisions  in  the  courts.  Resolutions  have  also  been  passed  by 
this  body  calling  upon  members  to  urge  the  repeal  of  the  law  by  the  next 
legislature. 

Apparently  the  trouble-makers  in  the  mining  districts  see  in  this 
mounted  force  a  new  and  important  factor  in  the  outcome  of  future  labor 
movements.  Therefore  they  do  not  wish  it  to  interfere  whenever  they 
start  a  demonstration.  But  besides  troublesome  people  in  the  coal  fields, 
Pennsylvania  has  other  bad  men  abroad,  and  these  have  a  faculty  of 
operating  through  the  countr)-  districts  out  of  range  of  the  city  police. 
Yeggmen,  horse  thieves,  game  poachers,  and  highwaymen,  —  all  ply  their 
trade  in  this  state.  The  constabularv'  is  to  pursue  these  fellows  just  as 
hard  as  the  rioters  among  the  coal  and  ore  regions. 


V 

THE   STATE  ADMINISTRATION 


THE  GROWTH  AND  FUTURE  OF  STATE  BOARDS 
AND  COMMISSIONS  1 

By  F.  H.  White 

[Among  the  most  striking  developments  of  the  last  decade  or  two  is  the  growth  of  ex- 
pert commissions  and  boards  in  the  state  governments.  In  many  commonwealths  these 
organs  of  the  administration  are  the  direct  descendants  of  legislative  committees.] 

In  America,  for  a  hundred  year.s  before  the  Civil  War,  the  govern- 
mental questions  uppermost  in  men's  minds  were  chiefly,  though  not 
exclusivelv,  constitutional ;  since  the  war  thev  have  been  mainlv  adminis- 
trative.^  I'hat  is  to  say,  prior  to  the  Civil  War  questions  of  independ- 
ence, of  the  interrelationship  of  governmental  departments,  of  state  rights, 
of  suffrage,  occupied  most  attention ;  while,  since  the  reconstruction 
period,  interest  has  been  centered  on  the  relations  of  the  state  to  great 
corporations,  on  capital  and  labor  in  their  industrial  struggles,  on  state 
aid  in  the  development  of  the  country's  resources,  on  the  methods  and 
measure  of  taxation,  on  the  protection  of  the  health  and  morals  of  the 
people,  and  on  the  furthering  of  educational,  industrial,  and  philanthropic 
enterprises.  The  problems  here  have  been  largely  those  of  administration, 
—  of  efficient  exercise  of  power  by  governmental  agencies. 

This  increased  administrative  activity  has  sometimes  found  expression 
in  laws  general  in  character  and  requiring  no  special  machinery  for  their 
execution  ;  but  more  frequently  a  special  need  —  industrial,  scientific, 
educational,  philanthropic  —  has  called  into  existence  a  special  organ  of 
government  to  supervise,  aid,  or  manage  the  affair.  This  is  the  source 
of  those  boards  and  commissions  which  have  in  late  years  become  prom- 
inent in  all  the  states,  but  more  particularly  in  those  having  the  most 
complex  and  highly  developed  industrial  organization.  These  bodies  are 
the  latest  |)roduct  of  governmental  evolution.  They  have  developed 
since  the  Civil  War,  many  of  them  during  the  last  two  decades ;  and  a 
study  of  their  form  and  action  will  reveal  the  tendencies  of  governmental 
progress  and  the  advance  already  made  in  certain  directions  toward 
paternalism  and  state  socialism. 

1  From  the  Polilical  Science  Quarterly,  1903 

2  Goodnow,  Comparative  Administrative  Law,  Vol.  I,  p.  4. 

222 


THE  STATE  ADMINISTRATION 


223 


I.  Origin  and  Distribution  of  the  Boards  and  Commissions 

Several  causes  have  contributed  to  the  establishment  of  these  bodies. 
One  undoubtedly  is  the  growing  consciousness  of  the  legislator  that  he 
must  have  more  light  before  filling  the  statute  books  with  laws.  Espe- 
cially does  he  feel  this  when  dealing  with  the  great  and  complicated 
interests  that  have  arisen  from  the  expansion  of  our  social  and  economic 
life.  A  number  of  the  commissions  may  be  said  to  have  had  their  origin 
and  prototype  in  standing  committees  of  the  legislature.  Of  course  it 
has  long  been  the  custom  of  legislative  bodies  to  refer  matters  requiring 
investigation  to  special  committees,  composed  of  their  own  members,  in 
order  that  data  may  be  collected,  evidence  heard,  and  recommendations 
proposed.  But  the  shortness  of  legislative  sessions  in  most  of  the  states, 
and  the  lack  of  expert  knowledge  and  of  necessary  leisure  on  the  part  of 
the  legislators  themselves,  have  sometimes  led  them  to  establish  a  com- 
mittee or  commission  composed  of  outsiders  possessing  special  knowl- 
edge of  the  subject,  and  able  to  give  their  whole  attention  to  the  matter 
in  hand. 

This  explanation  of  their  origin  would  hardly  hold  good  for  many  of 
the  boards  and  commissions  ;  for  example,  those  designated  "  executive." 
In  this  class  the  original  purpose  was  not  so  much  to  collect  information 
as  to  get  something  done ;  and  the  same  is  true  of  "  supervisory  "  and 
"  examining  "  commissions.  The  impulse  to  the  formation  of  such  com- 
missions has  frequently  come  from  outside  the  legislature,  and  the  whole 
plan  and  organization  have  been  suggested  independently  of  that  body. 
Public  opinion  has  first  been  aroused  by  earnest  advocates  of  the  pro- 
posed extension  of  governmental  functions,  and  this  has  finally  had  its 
influence  upon  those  in  authority.  A  bill  has  been  introduced  and  forced 
through,  and  the  establishment  of  the  commission  has  followed.  The 
Massachusetts  Board  of  Health,  and  later  the  Highway  Commission,  are 
cases  in  point,  and  good  examples  of  the  deliberate  manufacture  of 
public  sentiment. 

Another  cause  of  the  establishment  of  boards  and  commissions  is 
found  in  the  growing  strength  and  solidarity  of  professional  and  indus- 
trial organizations.  Realizing  that  the  good  name  of  their  profession  was 
suffering,  and  the  practice  of  their  members  at  the  same  time  diminished, 
by  the  quackery  or  unskilled  work  of  persons  pretending  to  have  the 
necessary  qualifications,  medical,  dental,  pharmaceutical,  and  other  asso- 
ciations have  used  their  not  inconsiderable  influence  to  secure  boards  of 
registration  and  to  obtain  laws  forbidding  practice  by  unregistered  per- 
sons. In  the  same  way  industrial  organizations  are  realizing  more  and 
more  what  a  useful  ally  the  government  can  be  in  limiting  numbers  in 
each  line  of  work,  and  a  movement  to  invoke  this  alliance  is  growing  in 
strength.  The  Pennsylvania  law  requiring  miners  to  obtain  certificates 
in  order  to  work  in  the  coal  mines  of  that  state  is  a  case  in  point. 


2  24  AMERICAN   STATE  GOVERNMENT 

As  to  the  distribution  of  the  commission  system  through  the  Union, 
Massachusetts,  the  pioneer  in  adopting  the  system,  distances  all  the  other 
states  in  the  number  of  such  bodies  and  in  the  variety  of  interests  placed 
under  their  care.  This  development,  however,  has  not  continued  with- 
out protest.  Illinois  stands  next.  In  general,  it  may  be  said  that  the 
states  having  highly  developed  manufacturing  and  commercial  interests 
lead  in  the  number  of  such  bodies.  The  exceptions  are  Kansas  and 
Colorado,  which  possess  a  surprising  number  for  states  having  agricul- 
ture or  mining  as  their  leading  industry.  The  New  England  states,  with 
the  exception  of  Maine  and  ^^ermont,  have  a  pretty  full  development  of 
the  system,  attributable  to  the  influence  of  Massachusetts  and  the  general 
similarity  of  economic  and  social  conditions.  The  southern  states,  as  a 
rule,  have  but  few  commissions. 

II.  Duties  of  the  Boards  and  Commissions 

So  various  are  the  duties  assigned  to  these  bodies  that  their  classifi- 
cation is  made  very  difficult.  A  careful  examination,  however,  reveals 
that  they  may  be  grouped  under  the  following  heads :  Industrial,  Scien- 
tific, Supervisory,  Examining,  Educational,  Executive,  Corrective,  and 
Philanthropic. 

I.  Industrial.  Examples  of  such  bodies  are  to  be  found  in  boards  of 
agriculture,  dairy  and  food,  horticulture,  and  inspectors  of  mines,  oil,  fish, 
live  stock,  grain,  steam  boilers,  steamboats,  workshops,  and  factories. 

A  majority  of  the  states  have  boards  of  agriculture ;  the  first  three 
boards  and  inspectors  of  mines  and  oil  mentioned  above  are  represented 
in  ])erhaps  one  fourth  of  the  states ;  each  of  the  remaining  boards  and 
inspectors  in  about  one  tenth  of  the  states.  There  are  a  number  of  other 
boards  that  arc  represented  in  only  one  or  two  states ;  for  example, 
terrapin  inspectors  (South  Carolina),  beef  and  scythe  stones  (Rhode 
Island),  silk  commission  (Kansas),  tobacco  inspectors  (Maryland),  bakery 
inspectors  (Ohio). 

In  boards  of  this  kind  we  see  an  effort  of  the  states  to  further  special 
industries,  because  of  their  present  or  prospective  importance.  That  so 
large  a  number  have  established  boards  of  agriculture  and  kindred  bodies 
niorticullure,  cattle,  etc.)  reveals  the  immense  importance  of  the  in- 
dustry, and  perhaps,  incidentally,  of  the  farmers'  vote ;  for  it  must  be 
admitted  that  commissions  are  sometimes  formed  to  indicate  an  interest 
in  a  particular  class  rather  than  to  meet  a  real  need  or  demand  of  the 
industry  thus  favored. 

These  boards  of  agriculture  have  endeavored  to  advance  the  industry 
by  spreading  information  concerning  the  best  methods  of  soil  cultivation 
and  of  stamping  out  diseases  prevalent  among  the  domestic  animals,  by 
making  known  the  advantages  their  respective  states  possess  for  agricul- 
tural pursuits,  by  organizing  and  conducting  farmers'  institutes  to  discuss 


THE  STATE  ADMINISTRATION  225 

matters  of  interest  and  exchange  experience.  These  and  other  duties 
have,  on  the  whole,  been  fairly  well  executed.  On  the  other  hand,  the 
boards  of  agriculture  have  not  been  without  faults.  A  tendency  to  move 
only  over  the  surface  of  the  questions  presented  for  discussion,  to  be 
popular  at  the  expense  of  a  more  thorough  and  adequate  treatment  of 
the  problem  discussed ;  a  willingness  to  boom  some  new  or  promising 
field  of  agricultural  work  without  due  consideration  of  anything  but 
immediate  consequences  and  surface  conditions  ;  and  a  too  ready  yield- 
ing to  the  temptation  to  give  advice  as  to  the  best  methods,  etc.,  when 
no  really  scientific  investigations  have  preceded,  —  these  are  the  chief, 
though  perhaps  not  the  only,  faults  of  these  bodies. 

Of  a  somewhat  different  character  from  the  boards  of  agriculture  are 
the  commissions  charged  with  the  duty  of  looking  after  the  quality  of  the 
staple  articles  of  their  respective  states,  and  of  seeing  that  various  means 
of  manufacture,  of  power,  of  transportation,  etc.,  are  in  proper  condition. 
The  purpose  here  is  to  protect  the  health  of  the  consumer,  the  good 
name  of  the  states'  products,  and  also,  in  some  cases,  the  safety  of  the 
employees.  The  inspection  of  mines  and  manufactures,  however,  has 
not  yet  proceeded  very  far,  but  may  be  found  in  a  few  of  the  states. 

The  experiment  of  Ohio  in  providing  a  free  employment  bureau,  a 
state  labor  exchange,  has  been  followed  only  in  New  York. 

2.  Scietitific.  Boards  of  health  are  found  in  most  of  the  states  ;  bureaus 
of  labor  statistics  have  been  established  in  about  one  half ;  boards  of 
topographical  or  geological  survey  in  about  one  fourth  of  the  states. 
Other  boards  and  commissions  of  this  general  character  (public  records, 
forestry,  weather  service,  drainage),  and  such  public  officers  as  vaccine 
agent  and  state  chemist,  are  found  in  but  few  states. 

The  desire  for  exact  information,  for  the  highest  expert  knowledge, 
grows  apace,  and  has  found  expression  in  the  creation  of  these  bodies, 
charged  primarily  with  the  collection  of  scientific  data  ;  though  some,  like 
the  boards  of  health,  have  executive  duties  to  perform.  It  is  a  promising 
sign  of  the  times  that  the  number  of  such  commissions  is  increasing.  The 
great  multiplication  of  boards  of  health  also  indicates  a  determination  to 
use  the  approved  results  of  scientific  investigation  in  the  most  effective 
way  for  the  prevention  of  epidemics  and  the  general  preservation  of  the 
health  of  the  people.  Of  course  this  is  a  species  of  paternalism,  though 
surely  of  a  very  justifiable  kind.  The  almost  absolute  power  of  these 
boards  in  condemning  property,  isolating  individuals,  and  establishing 
quarantines  is  worthy  of  more  attention  from  students  of  government. 

The  large  number  of  states  that  have  established  bureaus  of  labor 
statistics  since  Massachusetts  set  the  example  in  1869  indicates  the  need 
felt  of  securing  adequate  data  before  attempting  to  cure  social  ills.  No 
doubt  much  that  has  been  secured  by  these  bureaus  is  almost  useless, 
owing  to  the  failure  to  observe  the  strict  requirements  of  scientific  inves- 
tigation.  Politicians,  unfortunately,  have  frequently  secured  appointments 


2  26  AMERICAN  STATE  GOVERNMENT 

at  the  head  or  on  the  staff  of  the  bureaus  as  rewards  for  political  services  ; 
or,  in  order  to  secure  the  favor  of  labor  organizations,  untrained  men 
have  been  put  in  such  places,  with  the  result  that  their  work  is  discred- 
ited, and  fails  to  inspire  confidence  in  its  accuracy  or  scope.  Being  ill 
trained  or  untrained  in  the  difficult  work  of  collecting,  classifying,  and 
generalizing  the  necessary  information,  the  results  prove  inadequate, 
inaccurate,  and  misleading. 

Still,  much  use  has  already  been  made  by  statesmen,  students,  and 
writers,  of  the  matter  presented  in  the  reports,  not  only  in  this  country 
but  elsewhere.  The  example  of  the  United  States  in  collecting  and  pub- 
lishing industrial  information  in  a  systematic  fashion  has  been  followed 
quite  largely  in  other  countries. 

3.  Supervisory.  The  most  conspicuous  examples  are  boards  of  arbi- 
tration, railroad  commissions,  and  commissioners  of  insurance,  inland 
fisheries,  and  game.  The  last  three  are  found  in  a  large  number  of  states, 
the  first  in  at  least  eight.  Several  states  are  experimenting  with  boards 
of  inspectors  whose  duties  are  to  supervise  corporations  (Massachusetts), 
gas  and  gas  meters,  building  and  loan  companies. 

The  commissioners  grouped  under  this  head  are  probably  better  known 
than  any  others.  The  railroad  and  insurance  commissions  have  been  the 
most  prominent.  The  railroad  commissions  are  of  two  varieties  :  one,  of 
which  Massachusetts  furnishes  the  type,  has  power  to  direct  attention  to 
cases  of  neglect,  ill  treatment,  overcharges,  etc.,  by  the  railroads,  but  no 
power  to  compel  obedience ;  the  other  variety,  represented  by  most 
western  commissions,  possesses  power  to  compel  railroads  to  obey  its 
orders,  subject,  of  course,  to  the  courts. 

There  is  a  difference  of  opinion  as  to  the  relative  merits  of  the  two 
kinds,  though  the  tendency  seems  to  be  toward  the  latter.  The  commis- 
sion that  has  no  direct  power  of  compulsion  is  expected  to  act  on  the 
roads  through  public  opinion,  and,  ullimatcly,  through  the  legislature, 
should  the  roads  prove  obstinate.  The  commissions  possessing  direct 
power  have  found  themselves  much  circumscribed  by  the  federal  courts, 
that  insist  on  the  right  to  review  their  decisions  and  reverse  them  when 
they  appear  to  be  cutting  so  deeply  into  the  revenue  of  the  roads  as  to 
make  it  impossible  to  pay  fixed  charges  and  some  profits,  or  when  the 
procedure  of  the  commission  seems  inconsistent  with  due  process  of  law. 
Kansas  has  recently  attempted  to  get  around  both  of  these  points  by 
establishing  a  special  "  court  of  visitation,"  founded  for  the  purpose  of 
controlling  rates.  It  seems  unlikely  that  this  new  organization  can  stand 
the  tests  of  the  federal  courts. 

Insurance  commissioners  arc  endowed  witli  great  power  in  some  states. 
For  example,  in  Kansas,  the  insurance  commissioner  may  absolutely  ex- 
clude the  most  powerful  companies  from  writing  policies  within  the  state. 
Such  dictatorial  power  is  certainlv  liable  to  abuse,  and  exampU-s  are  not 
wanting  of  actions  by  a  former  insurance  commissioner  of  Kansas  that 


THE  STATE  ADMINISTRATION  227 

have  the  appearance  of  a  "  holding  up  "  of  the  companies,  —  of  com- 
pelling them  to  pay  for  the  privilege  of  operating  in  the  state.  It  was 
commonly  reported  during  his  administration  that  emissaries  from  the 
commissioner  tried  to  extort  what  amounted  to  blackmail  from  a  number 
of  the  largest  companies. 

The  movement  to  arbitrate  labor  disputes  between  employer  and  em- 
ployees has  crj'Stallized  in  eight  permanent  commissions  in  as  man}'  states. 
In  a  number  of  other  states  the  law  provides  a  method  of  creating  tem- 
porary commissions  for  the  settlement  of  labor  disputes  when  the  occasions 
arise.  They  have  had  a  moderate  amount  of  success,  but  do  not  seem 
to  have  met  the  expectation  even  of  their  originators.  In  a  recent  case 
in  Massachusetts  the  striking  laborers  and  the  employers  agreed  to  sub- 
mit the  matter  in  dispute  to  the  state  board  of  arbitration  and  conciliation, 
but  on  the  award  being  made  in  favor  of  the  employers,  the  laborers 
refused  to  accept  it.  Such  failures  to  abide  by  the  decision  of  the  arbi- 
trators strikes  a  deathblow  at  the  whole  system. 

4.  Examining.  Boards  of  registration  in  dentistr}^,  medicine,  and  phar- 
macy are  found  in  many  of  the  states.  In  at  least  four  there  is  a  civil-serv- 
ice board,  while  several  have  boards  or  commissions  whose  duties  are  to 
examine  pilots,  veterinarians,  undertakers,  architects  (Illinois),  horseshoers 
(Illinois,  Minnesota),  barbers  (Minnesota),  and  plumbers  (Minnesota). 

A  very  interesting  development  is  presented  under  this  head.  The 
movement  is  spreading  rapidly  to  provide  boards  for  the  examination  of 
certain  important  skilled  professional  men  and  artisans.  Dentistr)^,  medi- 
cine, and  pharmacy  commissions  are  required  by  law  to  examine  and  reg- 
ister those  persons  who  are  to  be  permitted  to  practice  their  respective 
professions  in  the  various  states.  Such  a  board  is  controlled  by  the  pro- 
fession concerned,  and  is  moved,  therefore,  by  a  real  desire  to  exclude 
unworthy  members  from  the  profession,  and  to  preserve,  so  far  as  possible, 
its  fair  fame.  The  exclusions  are  made  on  the  ground  of  unfitness  alone, 
so  that  any  attempt  to  limit  the  number  practicing  in  the  state  can  only 
be  carried  out  by  excluding  the  unworthy,  and  thus  the  standard  will  be 
raised.  In  all  these  professions  it  is  not  a  greater  number  of  practitioners 
that  the  public  interests  demand,  but  higher  skill ;  hence  such  a  system 
of  registration  may  be  expected  to  result  in  more  rigid  requirements. 

Unfortunately  the  states  have  not  yet  generally  provided  an  examin- 
ing board  for  their  own  employees.  The  desire  for  civil-service  reform 
has  been  gaining  ground  quite  rapidly,  however,  and  it  is  probable  that 
the  near  future  will  see  civil-service  commissions  established  in  other 
states  than  the  few  that  now  possess  them.  Still,  there  is  hardly  a  ses- 
sion of  the  legislature  in  any  of  the  states  where  the  commissions  exist 
that  does  not  witness  efforts  made  to  destroy  the  law. 

Minnesota  has  gone  surprisingly  far  in  providing  examining  boards 
for  occupations  other  than  the  professions  :  bakers,  plumbers,  and  horse- 
shoers are  registered  in  that  state.    In  the  New  York  legislature  of  1900 


2  28  AMERICAN  STATE  GOVERNMENT 

an  effort  was  made  to  establish  a  state  board  of  examiners  for  the  sani- 
tary inspection  of  barber  shops.  The  Brennan  bill  that  provided  this 
board  was  killed  after  some  debate  by  a  vote  of  72  to  42. 

That  this  movement  is  one  of  great  significance,  and  that  it  may,  if 
carried  so  far  as  to  interfere  materially  with  the  free  choice  of  occupation, 
produce  important  economic  results,  will  be  apparent  to  any  one  on 
reflection. 

5.  Educational .  Boards  of  control  of  educational  institutions  and  state 
boards  of  education  are  found  in  nearly  all  the  states.  Connecticut  made 
a  unique  advance  by  establishing  a  board  of  sculpture,  and  Massachusetts 
has  set  an  excellent  example  by  providing  for  a  public-library  commission. 

Notwithstanding  vigorous  efforts  to  divorce  politics  from  the  educa- 
tional and  philanthropic  activities  of  the  states,  the  temptation  to  use  the 
positions  in  the  different  institutions  and  boards  as  "  spoils  of  office " 
has  usually  been  too  great  for  governors  to  resist,  and  the  results  have 
frequently  been  deplorable.  The  recent  experience  of  the  Illinois  State 
Board  of  Charities  may  be  cited  as  a  case  in  point.  Public  opinion,  how- 
ever, is  becoming  more  and  more  educated  on  this  matter,  and  we  may 
confidently  look  forward  to  a  time  in  the  near  future  when  in  most  of 
the  states  politics  will  play  no  part  in  the  administration  of  the  state 
educational  and  charitable  institutions. 

6.  Executive.  The  desire  on  the  part  of  many  states  to  get  some- 
thing done  to  carry  through  some  great  enterprise,  even  though  at 
times  it  involved  the  entry  of  the  state  on  ground  supposed  to  be  the 
exclusive  domain  of  individual  enterprise  and  initiative,  has  led  to  the 
formation  of  boards  and  commissions  charged  with  such  duties  as 
the  .following :  construction  of  highways,  control  of  the  public  printing, 
selling  of  liquor  (South  Carolina),  managing  great  sewerage  and  water 
systems,  laying  out  extensive  parks,  constructing  and  repairing  levees 
(Louisiana  and  Mississippi). 

Massachusetts  has  led  the  way  in  this  class  of  commissions.  Her 
highway,  subway,  park,  water,  and  sewerage  commissions  are  all  excel- 
lent examples  of  what  the  state  may  do  under  certain  conditions.  Munic- 
ipalities, of  course,  have  long  been  engaged  in  the  construction  of 
waterworks,  sewerage  systems,  and  parks,  but  there  have  been  compara- 
tively few  examples  of  a  state's  undertaking  such  enterprises  as  these ; 
hence  the  special  interest  that  attaches  to  their  success  or  failure.  The 
occa.sion  for  a  number  of  the.se  commissions  in  Massachusetts  is  peculiar 
to  the  conditions  prevailing  around  Boston.  A  number  of  thriving  and 
well-to-do  communities  have  grown  u|)  within  a  small  radius  of  I)Oston, 
but  their  governments  are  entirely  independent,  thouglj  tliey  stand  in 
very  close  commercial  and  physical  relation  to  the  mother  city.  It 
became  obvious  that  it  would  be  to  the  advantage  of  all  concerned 
that  a  general  system  of  parks,  water,  sewerage,  and  transportation 
be  devi.sed  ;  but  as  the  towns  were  by  no  means  ready  to  sink  their 


THE  STATE  ADMINISTRATION 


229 


individual  existence  in  a  Greater  Boston,  it  seemed  best  to  have  the  state 
come  in  and  provide  a  commission  that  would  unify  action  and  yet  save 
the  rights  of  each. 

The  commissions  have  thus  far  been  remarkably  successful  in  what 
they  have  undertaken.  The  Highway  Commission  has  had  an  especially 
satisfactory  career,  and  though  it  has  spent  a  large  sum,  not  a  word  of 
complaint  as  to  misappropriation  of  funds  has  been  heard,  and  no  seri- 
ous criticisms  made  on  the  work  performed  except  as  to  general  policy. 
It  was  urged  by  many  that  continuous  good  roads  should  be  built 
instead  of  the  detached  sections  planned  by  the  commission.  So  strong 
was  the  demand  for  a  different  policy  that  a  change  was  made  a  few 
years  ago  in  the  personnel  of  the  commission.  The  character  of  the 
•commission  has  been  uniformly  high.  Most  of  its  members  have  been 
experts  of  great  reputation,  and  their  general  standing  has  been  such  as 
to  command  the  highest  respect. 

Up  to  the  present  time  the  work  undertaken  by  the  states  through 
their  executive  boards  has  consisted  chiefly  of  great  engineering  enter- 
prises. The  important  exceptions  are  the  conduct  of  a  public  printing 
establishment,  the  purchase  of  schoolbooks,  and  the  sale  of  liquors.  It 
must  be  said  that  the  conduct  of  all  these  enterprises  by  the  state  has 
been  fairly  satisfactory.  That  there  has  been  any  striking  advantage  to 
the  public  may  well  be  doubted.  Probably  the  activity  of  the  states  has 
hardly  gone  far  enough  in  extent  or  time  to  warrant  any  sweeping  judg- 
ment. That  it  has  attempted  these  lines  of  work  at  all  is  a  matter  of 
deep  interest,  and  may  well  cause  us  to  ask  in  expectancy,  What  next .-' 

7 .  Corrective  and  Philanthropic.  Under  this  caption  may  be  grouped 
such  bodies  and  officers  as  boards  of  police  and  of  charity  and  correc- 
tion, general  superintendent  of  prisons  (Massachusetts),  state  agent 
to  prevent  cruelty  to  animals  (North  Dakota).  Nearly  one  half  of  the 
states  have  state  boards  of  charities.  In  all  the  states  having  institutions 
for  the  defective,  dependent,  and  delinquent  classes  there  are  boards  of 
control.  Leaving  these  out  of  account,  the  various  bodies  or  officers 
under  this  head,  with  one  exception  (Massachusetts,  —  State  Aid),  are 
the  result  of  attempts  to  centralize  administration  in  the  state  govern- 
ment, —  to  supervise  and  control  local  authorities.  To  a  certain  extent, 
therefore,  they  are  in  opposition  to  the  policy  of  home  rule. 

Such  work,  however,  was  undertaken  reluctantly  by  the  state  govern- 
ments, and  only  when  the  abuses  under  the  local  governments  were  too 
great  to  be  borne.  The  administration  of  public  charitable  institutions, 
like  the  almshouses  and  hospitals  for  the  insane,  or  corrective  institutions, 
like  the  jails  and  prisons,  was  admittedly  bad  almost  everywhere.  This 
was  due  sometimes  to  the  poverty  of  the  local  communities,  but  usually 
to  ignorance  of  actual  conditions  and  to  lack  of  acquaintance  with  better 
methods,  or  to  the  shortsighted  penuriousness  of  the  people  of  the 
community. 


230  AMERICAN  STATE  GOVERNMENT 

The  state  boards  of  charities  in  Indiana,  Ohio,  and  New  York  are 
doing  an  incalculable  amount  of  good  by  inspection  and  the  requirement 
of  reports.  We  should  be  better  pleased,  no  doubt,  if  each  community 
needed  no  inspection  and  required  no  oversight,  — •  if  the  impulse  to 
better  things  came  from  within  rather  than  from  without.  It  has  been 
found  in  England,  however,  after  long  centuries  of  trial,  and  in  this 
country  after  a  considerable  period  of  experience,  that  the  local  authori- 
ties cannot  be  relied  upon  to  reform  their  methods  of  poor  relief,  or  to 
stay  reformed,  if  by  chance  they  have  a  spasm  of  virtue  and  improve 
matters  for  a  while. 

Perhaps  the  explanation  of  the  steady  improvement  under  the  state- 
board  system  may  be  found  partly  in  the  fact  that  the  whole  of  the 
state  seldom  degenerates  at  the  same  time  ;  that  if  one  part  deteriorates, 
the  other  portions,  acting  through  the  central  body, — the  state  board, 
— -  apply  the  spur  or  the  whip.  In  part,  the  explanation  may  be  that  the 
publicity  which  the  state  board  can  give  to  the  failures  of  the  local 
authorities  keeps  the  latter  ever  on  the  anxious  seat. 

The  control  of  the  local  police  by  the  state  is  an  experiment  which 
has  been  thoroughly  tried  in  Kansas  and  partially  tried  in  Massachu- 
setts. In  neither  state  is  there  a  central  board,  but  the  members  of  the 
local  boards  are  appointed  by  the  governor  and  may  be  removed  by 
him.  This  is  the  reason  for  placing  them  among  the  state  officers.  It  is 
quite  doubtful  if  the  laws  are  better  executed  by  this  arrangement.  In 
actual  practice  it  is  found  that  the  governor,  as  a  rule,  appoints  in  each 
city  the  kind  of  a  commission  the  majority  of  the  citizens  wish.  If  a 
commission  is  appointed,  not  backed  by  the  mass  of  the  people,  arrests 
and  convictions  are  very  difficult  to  obtain.  In  Massachusetts  the  inter- 
ference of  the  state  with  the  right  of  the  locality  to  appoint  its  own 
police  is  confined  to  the  cities  of  Boston,  Taunton,  and  Fall  River. 
Much  complaint  is  made  in  Boston,  by  Democratic  papers  at  least,  that 
such  an  arrangement  takes  from  the  city  the  right  to  manage  its  own 
affairs.  So  long,  however,  as  the  city  is  Democratic  and  the  state  outside 
Republican  there  need  be  little  expectation  of  a  change. 

No  one  can  glance  over  the  foregoing  activities  of  the  commissions 
without  remarking  their  varied  and  important  character.  They  reflect  the 
complexity  of  modern  life  and  suggest  the  imminence  of  a  government 
paternalism  more  far-reaching  than  our  country  has  known  in  the  past. 

It  is  clear  that  such  delicate  and  difficult  duties  as  those  described 
can  be  rightly  performed  only  by  experts.  Technical  training  and  skill, 
not  party  service,  must  be  the  criterion  for  the  personnel  of  the  commis- 
sions. If  party  service  determines,  one  of  two  things  will  happen  :  either 
the  work  will  be  badly  done  and  great  interests  will  suffer,  or  else  an 
expert  will  be  employed  to  do  the  work  thai  should  be  done  by  another, 
and  the  state  must  pay  two  salaries  when  one  would  suffice.  The  |M"in- 
ciple   here   involved    has  been  particularly   illustrated   in   the  affairs  of 


THE  STATE  ADMINISTRATION  23 1 

our  cities.  President  Eliot  remarks,  in  his  "  American  Contributions  to 
Civilization,"  that  "  the  failure  of  the  democratic  form  of  government 
has  occurred  chiefly  in  those  matters  of  municipal  administration  which 
present  many  novelties  and  belong  to  the  domain  of  applied  science, 
such  as  the  levying  of  taxes,  the  management  of  water  supplies  and 
drainage  systems,  the  paving,  lighting,  and  cleaning  of  highways,"  etc. 
After  calling  attention  to  the  high  degree  of  scientific  training  which 
such  matters  require,  he  notes  "  the  antiquated  methods  of  municipal 
administration,  and  particularly  the  short  and  insecure  tenures  for  the 
heads  of  departments,"  as  being  responsible  for  "  the  greater  part  of 
the  municipal  evils  which  are  bringing  discredit  on  free  institutions." 

Much  that  he  says  can  be  applied  with  equal  force  to  the  state  govern- 
ments. Massachusetts,  it  is  true,  is  far  in  advance  of  most  of  the  states 
in  the  care  exercised  in  choosing  officers.  Here  experts  are  usually  pre- 
ferred to  politicians,  and  competent  officials  are  retained  for  long  periods. 
Even  Massachusetts,  however,  has  something  to  learn  along  these  lines. 

Having  considered  the  origin  and  duties  of  the  boards  and  commis- 
sions, attention  should  now  be  turned  to  the  relations  of  these  new 
organs  of  government  to  other  and  older  features  of  the  general  frame- 
work of  the  state.  We  should  know  how  they  are  articulated  with  the 
executive,  legislative,  and  judicial  departments,  as  well  as  their  relations 
with  the  local  government. 

III.  Relation  of  the  Boards  and  Commissions  to  the  Governor 

AND  THE  Legislature 

State  commissions,  whether  composed  of  several  members,  usually 
three  or  more,  as  is  generally  the  case,  or  of  only  a  single  commissioner, 
are  constituted  through  appointment  of  the  members  by  the  governor, 
subject  usually  to  confirmation  by  the  Senate.  Reports  are  made  in 
some  cases  to  the  legislature,  in  others  to  the  governor. 

It  frequently  happens  that  the'  law  organizing  the  commission  is  so 
expressed  as  to  give  the  governor,  after  making  the  appointment  of  its 
members,  no  further  control  over  the  actions  of  that  body.  The  power 
of  removal  either  is  denied  him,  or  is  hedged  about  in  such  a  way  as  to 
make  its  exercise  practically  impossible  except  for  the  grossest  malfea- 
sance. Often  the  legislature  has  granted  these  commissions  almost  com- 
plete power  in  their  sphere,  and  placed  in  their  hands  the  uncontrolled 
expenditure  of  large  sums  of  money.  On  their  appointment  by  the  gov- 
ernor they  are  launched  in  their  orbit  with  practically  no  one  to  restrain 
or  limit  their  action  within  the  law.  The  governor's  reputation  may 
suffer  by  their  action,  yet,  as  he  has  practically  no  power  of  removal,  he 
is  helpless,  except  so  far  as  he  may  direct  public  attention  to  the  wrong- 
doing. In  effect,  the  commission  system  establishes  a  fourth  department 
of  government  directly  responsible  neither  to  the  people,  for  the  members 


2  32  AMERICAN  STATE  GOVERNMENT 

are  seldom  elected ;  nor  to  the  legislature,  for  it  does  not  appoint  or 
remove ;  nor  to  the  governor,  for,  though  he  appoints,  it  is  seldom  he 
has  the  power  of  removal. 

Of  the  changes  that  have  taken  place  in  the  structure  and  function 
of  the  state  government  during  the  century,  none  seems  more  striking 
or  more  suggestive  than  the  growth  of  this  fourth  department  of  gov- 
ernment. Of  course  the  commissions  are  intimately  connected  with  the 
three  traditional  departments  in  certain  ways,  —  e.g.  appointment,  re- 
ports, etc.,  —  and  are  dependent  upon  them  in  an  important  respect  for 
supplies,  etc. ;  nevertheless,  they  have  a  field  of  their  own,  an  orbit 
traversed  only  by  themselves. 

In  Massachusetts,  where  the  system  has  attained  its  fullest  develop- 
ment, complaints  are  frequently  heard  of  the  multiplication  of  boards 
and  commissions,  of  their  failure  to  work  together,  of  their  irresponsi- 
bility, and  the  expense  necessary  for  their  maintenance ;  but  one  who 
studies  the  signs  of  the  times  w'ill  hardly  expect  that  the  functions  as- 
sumed by  these  organizations  will  be  given  up  by  the  state.  Most  of 
them  have  clearly  demonstrated  their  usefulness. 

The  growth  of  the  commission  system  stands  in  intimate  relation 
with  a  clearly  discernible  tendency  in  the  character  of  the  governor's 
position.  While  the  office  of  President  of  the  United  States  has  been 
growing  in  power  since  the  adoption  of  the  Constitution,  the  office  of 
governor  in  the  states  -has  been  decreasing  in  importance.  The  reason 
is,  in  large  part  at  least,  that  with  the  growth  of  administrative  work  on 
the  part  of  the  national  government  has  gone  a  corresponding  increase 
in  the  influence  of  the  President.  Usually  Congress,  when  establishing 
new  administrative  features,  has  placed  them  under  the  President's 
direction ;  and  as  he  has  had,  during  almost  the  whole  period,  full  power 
of  removal  as  well  as  of  appointment,  he  has  been  enabled  personally  to 
control  and  direct  the  whole  administration  from  top  to  bottom.  Very 
different  has  been  the  history  of  the  governor.  Whether  from  jealousy 
or  from  distrust,  it  has  been  the  almost  invariable  practice  for  the  legis- 
lature to  retain  in  its  own  control  a  considerable  amount  of  adminis- 
trative work ;  and  what  has  been  transferred  to  the  executive  has  been 
given  to  him  with  qualifications. 

A  reversal  of  this  policy  is  strongly  advocated  in  some  quarters,  and 
a  vigorous  effort  is  making  to  rehabilitate  the  governor,  —  to  make  him 
not  merely  the  nominal  but  the  real  head  of  the  administration,  respon- 
sible for  its  doings,  and  able  to  carry  out  a  consistent  and  comprehen- 
sive policy.  It  is  not  sufficient,  the  argument  goes,  to  give  him  merely 
the  power  of  appointment :  it  is  necessary  that  he  have  also  the  power 
of  removal.  If  we  believe,  as  we  claim  we  do,  in  the  old  Montcsquieuan 
view  of  the  necessity  of  a  division  of  the  powers  of  government  among 
three  departments  which  shall  be  indei)en(lent  of  one  another  and  sufii- 
ciently  powerful  to  act  as  a  real  check  upon  one  another,  something  must 


THE  STATE  ADMINISTRATION 


^33 


be  done  to  raise  the  executive  from  the  position  of  innocuous  desuetude 
into  which  it  is  slowly  sinking. 

'I'o  make  the  governor  the  real  head  of  the  growing  administrative 
organization  that  is  seen  in  the  boards  and  commissions,  would  greatly 
strengthen  his  position,  and  at  the  same  time  do  away  with  this  fourth 
department,  composed  of  independent  administrative  bodies,  which  seems 
to  have  no  true  place  in  our  system  of  government,  and  which  prevents 
the  proper  working  of  our  system  of  checks  and  balances. 

IV.  Relation  of  the  Boards  and  Commissions  to  the  Courts 

It  is  important  to  know  the  legal  status  of  these  new  organs  of  gov- 
ernment. They  have  occasionally  come  in  contact  with  the  courts :  how 
have  they  fared  ?  May  a  legislature  delegate  such  important  powers  as 
are  now  exercised  by  many  commissions .''  Does  the  legislature  itself 
possess  the  powers  which  commissions  claim }  If  the  legislature  does 
possess  them  and  may  delegate  them,  are  there  restrictions  in  the 
United  States  Constitution  or  elsewhere  on  their  exercise  by  these 
commissions .''  Such  are  the  more  important  questions  that  present 
themselves  on  any  extended  examination  of  this  subject.  These  various 
questions  I  now  propose  to  answer,  so  far  as  possible,  in  the  words  of 
the  court.  The  first  question  is  that  as  to  the  right  of  the  legislature  to 
supervise,  regulate,  or  manage  the  various  matters  that  have  been  in- 
trusted to  boards  and  commissions. 

The  Supreme  Court  of  the  United  States,  in  the  famous  case  of  Munn 
vs.  Illinois,^  laid  down  this  principle  in  the  course  of  their  decisions : 

When,  therefore,  one  devotes  his  property  to  a  use  in  which  the  public  has 
an  interest,  he,  in  effect,  grants  to  the  public  an  interest  in  that  use,  and  must 
submit  to  be  controlled  by  the  public  for  the  common  good,  to  the  extent  of 
the  interest  he  has  thus  created. 

Certainly  this  is  a  very  broad  doctrine,  and  seems  sufficient  to  cover 
the  different  interests  represented  by  the  state  boards  and  commissions. 
It  has  not  gone  without  question,  however ;  and  in  the  case  of  Budd  vs. 
N.  Y.,^  decided  in  1892,  the  case  of  Munn  vs.  Illinois  was  reviewed  and 
adhered  to.  But  there  was  a  strong  dissenting  opinion,  and  the  follow- 
ing extract  will  give  the  point  of  view  and  ground  of  objections : 

The  vice  of  the  doctrine  is  that  it  places  a  public  interest  in  the  use  of 
property  upon  the  same  basis  as  a  public  use  of  property.  Property  is  devoted 
to  a  public  use  when  and  only  when  the  use  is  one  in  which  the  public  in  its 
organized  capacity,  to  wit,  the  state,  has  a  right  to  create  and  maintain,  and, 
therefore,  one  which  all  the  public  has  a  right  to  demand  and  share  in.  The 
use  is  public,  because  the  public  may  create  it,  and  the  individual  creating 
it  is  doing  thereby  and  pro  taiito  the  work  of  the  state.    The  creation  of  all 

I94U.  S.  113.  ^i43U.  S.  517. 


2  34  AMERICAN  STATE  GOVERNMENT 

highways  is  a  public  duty.  .  .  .  But  this  public  use  is  very  different  from  a 
public  interest  in  the  use.  There  is  scarcely  any  property  in  whose  use  the 
public  has  no  interest.  .  .  . 

The  paternal  theory  of  government  is  to  me  odious.  The  utmost  possible 
liberty  to  the  individual,  and  the  fullest  possible  protection  to  him  and  his 
property,  is  both  the  limitation  and  duty  of  government.  If  it  may  regulate 
the  price  of  one  service,  which  is  not  a  public  servife,  or  the  compensation 
for  the  use  of  one  kind  of  property  which  is  not  devoted  to  a  public  use,  why 
may  it  not,  with  equal  reason,  regulate  the  price  of  all  service,  and  the  com- 
pensation to  be  paid  for  the  use  of  all  property  ?  And  if  so,  "  Looking  Back- 
ward "'  is  nearer  than  a  dream. 

This  view  was  not,  however,  the  view  of  the  court,  and  we  must  con- 
clude, from  the  above  discussion,  that  the  legislature  possesses  the  power 
in  question.  The  next  point  to  be  considered  is  its  right  to  delegate  the 
exercise  of  the  power  to  boards,  commissions,  or  officers. 

In  the  case  Railroad  Co.  vs.  Gibbes,^  decided  by  the  United  States 
Supreme  Court  in  1892,  the  question  of  compelling  the  railroad  com- 
panies to  bear  the  expense  of  maintaining  a  state  railroad  commission 
was  under  consideration.  The  court,  after  showing  that  the  provisions 
of  the  law  assigned  to  the  railroad  commission  certain  duties,  which,  when 
"  properly  discharged,  must  be  in  the  highest  degree  beneficial  to  the  pub- 
lic, securing  faithful  service  on  the  part  of  the  railroad  companies,  and 
safety,  convenience,  and  comfort  in  the  operation  of  their  roads,"  pro- 
ceeded to  state  his  opinion  that  "  the  state  had,  without  doubt,  the  power 
to  prescribe  the  regulations  mentioned,  because,  though  the  railroad 
companies  were  private  corporations,  their  uses  were  public."  It  then 
uses  the  following  language,  of  special  importance  to  the  point  under 
consideration : 

The  regulations  may  extend  to  all  measures  deemed  essential  not  merely  to 
secure  the  safety  of  the  passengers  and  freight,  but  to  promote  the  convenience 
of  the  public  in  the  transaction  of  business  with  them,  and  to  prevent  abuses 
by  extortionate  charges  and  unjust  discriminations.  It  may  embrace  a  general 
supervision  of  the  operations  of  their  roads,  which  may  be  exercised  by  direct 
legislation,  commanding  or  forbidding,  under  severe  penalties,  the  doing  or 
omission  of  particular  acts,  or  if  j/tay  be  exercised  through  commissions  spe- 
cially appointed  for  that  purpose.  The  mode  or  ma/iner  of  rei^ulation  is  a 
7natter  of  legislati^ie  discretion.  .  .  .'^  When  exercised  through  commissions, 
their  services  are  for  the  benefit  of  the  railroad  corporations  as  well  as  of  the 
public.  Both  are  served,  .  .  .  and  there  would  seem  to  be  no  sound  reason 
why  the  compensation  of  the  commissioners, in  such  cases  should  not  be  met 
by  the  corporations  supervised. 

As  bearing  directly  upon  this  point.  Professor  Thayer's  comment  will 
be  of  great  interest : 

It  may  be  doubted  that  there  is  any  difference  between  the  action  of  a  legis- 
lature and  that  of  a  legislative  conunission  as  regards  the  questions  involved 

'  142  U.  S.  386.  2  Italics  are  mine. 


THE  STATE  ADMINISTRATION  235 

in  such  a  case  as  Chicago,  etc.,  Ry.  Co.  7>s.  Minnesota,  when  once  it  is  clear 
that  the  legislature  has  really  undertaken  to  confer  upon  the  commission  the 
power  in  question.  If  the  legislature  can  exercise  it,  it  would  seem  that  it  may 
confer  on  the  commission  a  like  authority. 

Yet,  as  regards  subordinate  bodies,  there  is  always  the  question  of  con- 
struction as  to  what  authority  has,  in  fact,  been  conferred  on  them ;  and  in 
passing  on  this,  established  common-law  principles  are  applicable,  which 
ordinarily,  and  in  the  absence  of  clear  legislative  intentions  to  the  contrary, 
enable  the  courts  to  control  their  action  as  not  authorized  by  the  legisla- 
ture. Similar  action  by  the  legislature  itself  can  be  condemned  only  if  it  be 
unconstitutional.^ 

Having  now  the  opinion  of  the  highest  court  in  the  land  on  the  powers 
of  the  legislature  and  its  right  to  delegate  these  powers,  we  pass  to 
a  consideration  of  the  limitation  on  their  exercise  in  the  hands  of  a 
commission. 

In  the  foregoing  quotation  from  Professor  Thayer,  the  point  is  em- 
phasized that  the  powers  of  the  commissions  will  be  construed  in  the 
light  of  established  common-law  principles  unless  the  legislature  clearly 
expresses  its  intention  that  the  principles  shall  not  hold.  We  find  in  the 
same  line  the  Supreme  Court  insisting,  in  Chicago,  etc..  Railway  Co.  vs. 
Minnesota,-  that  the  provision  in  the  United  States  Constitution  that  no 
person  shall  be  deprived  of  life,  liberty,  or  property  without  due  process 
of  law,  prevents  a  railroad  commission  from  passing  finally  on  the  rates 
to  be  charged  by  a  railroad  company  when  no  judicial  inquir)-  is  instituted, 
that  is,  when  there  is  nothing  that  corresponds  with  due  process  of  law\ 
The  Minnesota  statute  that  established  the  railroad  commission  was  in- 
terpreted by  the  supreme  court  of  that  state  as  providing  that  the  rates 
settled  upon  by  the  commission  should  be  final  and  conclusive  as  to  what 
are  equal  and  reasonable  charges,  and  that  there  could  be  no  inquiry  by 
the  courts  as  to  the  reasonableness  of  said  rates.  Accepting  this  inter- 
pretation of  the  statute  as  correct,  the  Supreme  Court  of  the  United 
States  declared : 

It  deprives  the  company  of  its  right  to  a  judicial  investigation  by  due  process 
of  law,  under  the  forms  and  with  the  machinery  provided  by  the  wisdom  of 
successive  ages  for  the  investigation  judicially  of  the  truth  of  a  matter  in  con- 
troversy, and  substitutes  therefore,  as  an  absolute  finality,  the  action  of  a  rail- 
road commission  which,  in  view  of  the  powers  conceded  to  it  by  the  state 
court,  cannot  be  regarded  as  clothed  with  judicial  functions  or  possessing  the 
machinery  of  a  court  of  justice.   .   .  . 

No  hearing  is  provided  for,  no  summons  or  notice  to  the  company  before 
the  commission  has  found  what  it  is  to  find  and  declared  what  it  is  to  declare, 
no  opportunity  provided  for  the  company  to  introduce  witnesses  before  the 
commission,  in  fact,  nothing  which  has  the  semblance  of  due  process  of  law ; 
and  although,  in  the  present  case,  it  appears  that,  prior  to  the  decision  of  the 
commission,  the  company  appeared  before  it  by  its  agent,  and  the  commission 
1  Thayer,  Cases  in  Constitutional  Law,  I,  672.  2  i^^  u.  S.  41S. 


236  AMERICAN  STATE  GOVERNMENT 

investigated  the  rates  charged  by  the  company  for  transporting  milk,  yet  it 
does  not  appear  what  the  character  of  the  investigation  was,  or  how  the  result 
was  arrived  at. 

The  principle  here  enunciated  as  applying  to  railroad  commissions 
will,  of  course,  apply  to  any  other  commission  that  tries  to  exercise  the 
power  of  regulating  charges.  It  is  clear,  therefore,  that  the  federal  courts 
stand  as  a  bulwark  against  any  final  deprivation  of  life,  liberty,  or 
property  by  a  commission,  and  that  the  actions  of  the  commissions  are 
subject  to  review  by  the  courts.  Undoubtedly  this  is  a  serious,  though 
probably  a  salutary,  restraint.  The  difficulty  is  that  the  court  must  judge 
a  mass  of  detailed  information  that  it  has  neither  the  time  nor  the  expert 
knowledge  to  consider  properly,  and  a  conscientious  attempt  of  the  judges 
to  master  the  problem  gives  the  opportunity,  so  frequently  abused,  of 
delaying  the  operation  of  the  commission's  orders  in  a  given  case. 

V.  Relation  of  the  Boards  and  Commissions  to  the  Local 

Governments 

In  the  establishment  of  all  the  state  commissions,  and  especially  of  the 
executive  commissions,  there  is  observable  a  decided  movement  toward 
centralization.  It  is  curious  to  note,  in  this  connection,  that  in  the  coun- 
tries of  the  Old  World  where  centralization  has  been  carried  farthest, 
namely  France  and  Germany,  there  is  a  decided  movement  toward  de- 
centralization.^ It  is  probable  that  extreme  centralization  and  extreme 
self-government  of  localities  are  both  undesirable,  and  a  moderate  degree 
of  each  is  preferable.  This,  it  seems  to  me,  is  the  conclusion  derivable 
from  experience  in  the  four  countries  of  the  world  where  government 
and  administration  have  received  the  most  intelligent  and  continuous 
consideration.  Thus,  it  is  going  too  far  in  the  direction  of  centralization, 
it  seems  to  me,  when  the  control  of  the  local  police  is  taken  from  the 
locality  ;  and  too  far  in  the  direction  of  local  self-government  when  great 
thoroughfares,  in  which  many  communities  are  interested,  are  left  to 
the  unaided  and  usually  unintelligent  management  of  a  nonprogressive 
locality.  There  is  a  mean  here,  as  elsewhere,  and  it  is  the  place  of  the 
statesman  to  discover  it.  He  must  find  the  point  where  local  self-respect 
and  initiative  are  preserved,  and  yet  the  general  interests  are  sufficiently 
secured. 

The  experience  of  the  Massachusetts  Highway  Commission  presents 
something  of  value  in  this  connection.  It  has  been  so  universally  the 
custom  in  this  country  to  make  the  roads  a  local  matter,  that  intrusting 
to  the  state  a  share  in  construction  and  management  was  pioneer  work, 

'  Now  while  the  tendency  of  the  United  States  and  Enpland  has  been  toward  adminis- 
trative centrahzation,  the  tendency  in  France  and  Germany  has  been  toward  administrative 
decentralization.  Within  the  last  twenty  years  many  matters  which  formerly  were  regulated 
by  the  instructions  of  the  heads  of  departments  have  been  put  into  the  hands  of  the  ollicers 
of  the  localities  to  be  attended  to  in  their  own  discretion. —  Goodnow, 


THE  STATE  ADMINISTRATION 


237 


with  no  precedents.^  Careful  consideration  was  given  to  the  best  way 
of  preserving  local  interests  in  the  roads,  and  also  of  preventing  that 
"  pauperizing "  of  localities  so  apt  to  occur  if  the  state  assumes  the 
whole  burden.  The  following  points  embody  the  solution  of  the  prob- 
lem that  commended  itself  to  the  framers  of  the  act  organizing  the 
Massachusetts  Highway  Commission  : 

1.  Road  construction  is  undertaken  by  the  state  commission  only  on 
petition  by  local  authorities. 

2.  One  fourth  of  the  amount  expended  by  the  state  must  be  returned 
within  six  years  by  the  counties  in  which  the  work  is  done. 

3.  The  localities  are  encouraged  to  bid  for  the  consti^uction  of  the  roads 
in  their  areas,  and  are  given  thirty  days  to  decide  whether  they  will  elect 
to  do  the  work  at  the  terms  proposed  by  the  commission.  .If  they  do  not 
so  elect,  private  contractors  are  permitted  to  bid. 

The  value  of  these  provisions  will  be  recognized  at  once.  Not  only  will 
the  attention  of  the  people  be  turned  to  the  condition  of  the  highways  in 
their  vicinity,  but,  if  they  undertake  the  work,  much  valuable  experience 
will  be  obtained  in  scientific  road  building ;  for  all  work  must  be  done 
according  to  the  plans  and  under  the  supervision  of  engineers  sent  by 
the  state  commission  to  reside  at  that  point  until  the  work  is  completed. 
Again,  by  sharing  the  expenditure  with  the  state,  the  locality  will  have  a 
deeper  interest  in  the  road,  and  feel  very  much  as  if  it  were  paying  its 
own  way  ;  for  even  a  fourth  of  the  whole  cost  of  construction  will  involve 
a  perceptible  increase  in  the  tax  levy. 

After  a  short  experience  it  was  found  desirable  to  simplify  the  process 
of  petitioning  for  road  construction.  It  has  also  been  made  easier  for 
towns  and  cities  to  undertake  for  themselves  the  work  of  construction, 
by  repealing  the  rather  ill-advised  check  on  the  commission's  power  to 
contract.  The  first  act  stated  that  the  town  or  city  could  not  be  allowed 
more  than  85  per  cent  of  the  original  estimate  of  cost  of  construction 
made  by  the  commission.  A  later  law  leaves  the  matter  of  terms  without 
any  such  limitation. 

Massachusetts  has  made  other  attempts  than  the  one  just  noted  to 
adjust  properly  local  self-government  and  state  control.  The  most  inter- 
esting, perhaps,  are  the  various  metropolitan  commissions,  that  have  for 
their  object  the  unifying  of  the  action  of  several  communities  grouped 
around  a  great  city.  The  duties  and  powers  of  these  commissions  have 
already  been  described,  and  I  refer  to  them  here  simply  to  note  the  dif- 
ference between  the  solution  adopted  by  Massachusetts  and  that  adopted 
by  New  York  and  Illinois  for  the  same  problem.  In  the  latter  states, 
Chicago  absorbed  its  environs  bodily,  and  New  York  did  likewise.  Bos- 
ton bearing,  it  is  true,  somewhat  different  relations  to  its  near-by  towns, 
has  been  content  to  secure  united  action  in  certain  important  matters  by 

1  New  Jersey,  it  is  true,  had  made  some  beginnings  in  general  road  improvement,  but  the 
plan  did  not  involve  centralization. 


238  AMERICAN  STATE  GOVERNMENT 

the  appointment  of  these  metropolitan  commissions,  but  has  left  the  sev- 
eral towns  free  to  manage  their  own  local  affairs.  This  would  seem  to 
be  following  closely  the  example  of  our  national  system,  and  it  is  quite  in 
line  with  the  idea  of  the  golden  mean  between  state  and  local  control. 

VI.    The  Future  of  the  Commission  System 

It  seems  hardly  possible  that  the  present  system  of  almost  independent 
commissions  can  be  permanent.  They  fail  to  work  in  harmony,  to  co- 
operate, to  give  each  other  the  benefit  of  experience  that  might  be  help- 
ful. In  the  absence  of  a  central  control  there  is  no  way  to  coordinate  the 
duties  of  the  several  boards.  The  present  seems  to  be  a  transitional 
stage,  arising  from  the  gradual  assumption,  by  the  state,  of  new  duties 
w'ithout  an  adequate  realization  of  all  that  is  involved,  and  without  any 
general  plan.  One  can  see  in  it  a  certain  likeness  to  conditions  just  be- 
fore Napoleon  I  assumed  the  government  of  France,  and  I  am  tempted 
to  predict  an  outcome  similar  in  nature  to  the  administrative  system 
he  established.  The  French  precedent  is  thus  described  by  President 
Woodrow  Wilson : 

The  Convention  and  Assembly  had  endeavored  to  direct  affairs  through 
committees,  commissions,  councils,  directories,  —  through  executive  boards, 
in  a  word.  For  such  instrumentalities  Napoleon  substituted  single  officers  as 
depositaries  of  the  several  distinct  functions  of  administration  ;  though  he  was 
content  to  associate  with  these  officers  advisory  councils,  whose  advice  they 
might  ask,  but  should  take  only  on  their  own  individual  responsibility.  "  To 
give  advice  is  the  province  of  several ;  to  administer,  that  of  individuals,"  says 
the  maxim  which  he  engraved  on  the  pediment  of  the  administrative  arrange- 
ments of  France.^ 

It  will  be  noticed  that  Napoleon  provided  for  advisor^'  councils.  Per- 
haps this  would  solve  the  problem  of  securing  the  advice  and  assistance 
of  persons  whose  experience  or  talents  would  be  of  great  value  to  the 
state,  but  who  cannot  be  induced  to  enter  its  service  as  paid  employees. 
If  such  persons  could  be  associated,  as  an  advisory  body,  with  the  execu- 
tive head  of  each  department  or  division,  the  double  advantage  of  wise 
counsel  and  efficient  administration  would  be  attained. 

Such  a  solution  of  one  great  problem  must  be  accompanied  by  some 
scheme  for  the  proper  grouping  of  the  commissions  into  executive 
departments.  No  doubt  a  number  of  possible  combinations  might  be 
proposed.  I  suggest  the  following  scheme,  which  provides  for  all  the 
important  boards,  and  groups  together  those  handling  similar  matters. 
It  is  based  on  the  existing  conditions  in  Massachusetts : 

Department  of  Education  :  I'ublic  Schools  ;  Nautical  Training  ;  Free  I'ublic 
Libraries  ;   Normal  .Schools. 

Department  of  Examinations :  Civil  Service ;  Dentistry  ;  Medicine ;  Phar- 
macy ;   Pilots. 

1  The  State,  rev.  ed.,  p.  214. 


THE  STATE  ADM1NISTR.\T10N  239 

Department  of  Manufactures :  Labor  Statistics ;  Arbitration  and  Concilia- 
tion;   Inspection  of  Manufactures ;   Lumber;   Liquors;   etc. 

Department  of  Agriculture :  Agriculture;  Cattle;  Dairy;  Horticulture;  In- 
land Fish  and  Game. 

Department  of  Corporate  Control :  Railroads ;  Gas ;  Telephone ;  Street 
Railways;   Banks;   Insurance. 

Public  Works :  Highways;  Parks;  Sewerage;  Buildings;   Land;   Harbor. 

Department  of  Charities  and  Corrections :  Lunacy,  Feeble-Minded,  Blind, 
etc. ;   Charity  Work  ;   Prisons,  Reformatories,  etc. 

Department  of  Public  Safety  :   Health  ;   Fire  Marshal ;   Police. 

By  way  of  summary  and  conclusion,  the  whole  situation  may  be 
thus  put : 

The  people  of  the  several  states,  especially  those  in  which  there  is  an 
active  commercial,  political,  or  intellectual  life,  are  steadily  insisting  that 
their  state  governments  shall  take  a  more  active  part  in  affairs,  shall  be 
a  positive  force  in  creating  better  conditions  and  regulating  old  ones. 
They  have  been  feeling  their  way  by  the  establishment  of  commissions 
charged  especially  with  certain  duties  of  this  nature. 

From  the  first,  appointments  to  the  paid  places  have  to  a  considerable 
extent  been  made  without  due  regard  to  fitness  or  special  ability.  The 
nonpaid  places  have  frequently  secured  excellent  men  ;  but  because  these 
have  been  unable  or  unwilling  to  give  their  whole  time  to  the  state,  cer- 
tain evils  have  arisen  from  the  partial  service.  Gradually,  however,  there 
is  arising  a  demand  for  the  best  men  and  for  their  whole  time.  When 
this  demand  becomes  sufficiently  strong  to  insure  adequate  compensa- 
tion, permanent  employment,  and  considerate  treatment,  the  state  will  be 
able  to  secure  the  service  it  needs. 

Meanwhile  a  movement  for  consolidation  of  the  boards  into  depart- 
ments has  been  growing.  Eventually,  departments  will  be  formed  in 
most  states,  I  believe,  and  perhaps  there  will  be  attached  to  them  advi- 
sory councils,  made  up  of  citizens  whose  wisdom  and  influence  could  not 
otherwise  be  secured.  The  governor  will  be  the  head  of  the  administra- 
-tive  system,  and  responsible  for  its  proper  management.  Like  the  Presi- 
dent of  the  United  States,  he  will  have  the  power  of  removal. 

How  far  the  state  will  go  in  its  supervisory,  executive,  and  examining 
work,  no  one  can  predict ;  but  the  end  is  still  far  off,  and  I  look  for  a 
great  extension  of  state  activities.  Yet  it  is  to  be  hoped  that  it  will  not 
go  so  far  as  seriously  to  check  individual  initiative  nor  weaken  personal 
responsibility. 


240  AMERICAN  STATE  GOVERNMENT 

THE  PUBLIC  SERVICE  COMMISSIONS  LAW  OF 

NEW  YORKi 

By  Thomas  Mott  Osborne 

The  events  which  led  to  the  passage  of  the  Public  Service  Commis- 
sions Law  in  the  state  of  New  York  are  of  such  recent  occurrence  that 
it  might  not  be  unnatural  to  assume  that  they  are  still  fresh  in  the  minds 
of  every  one  interested  in  public  affairs ;  but  in  our  country  political 
memories  are  so  very  short  that  it  is  never  safe  to  assume  a  clear  recol- 
lection of  the  most  elementary  facts  in  the  situation  of  even  two  years 
ago.  Four  years  is  a  political  generation  —  the  life  of  a  national  adminis- 
tration —  and  our  whole  political  thought  and  action  is  thereby  chopped 
into  very  short  units. 

In  New  York  state,  with  its  governor's  term  of  two  years,  our  political 
memories  tend  to  be  even  shorter  than  in  national  affairs ;  and  certainly 
it  seems  as  if  recent  events  had  moved  with  almost  enough  rapidity  to 
justify  our  vagueness.  It  is  but  little  more  than  three  years  since  the 
struggle  for  control  of  a  great  life-insurance  company  brought  about  a 
sort  of  family  quarrel  among  its  directors  ;  that  quarrel  uncovered  a  grave 
condition  of  affairs,  in  which  of  necessity  the  public  was  seriously  inter- 
ested ;  that  interest  led  to  a  legislative  investigation ;  that  investigation 
brought  to  the  front  an  experienced,  able,  and  fearless  lawyer  who  had 
hitherto  lived  but  little  in  the  public  eye ;  and  that  able  lawyer  probed 
the  life-insurance  scandals  with  such  marked  ability,  high  professional 
standards,  and  remorseless  vigor  that,  when  the  Republican  party  of  the 
state,  crippled  by  savage  quarrels  among  its  leaders  and  much  discredited 
by  its  recent  record,  looked  about  for  a  candidate  who  could  win  the 
election  of  1906,  it  recognized  that  he  was  the  one  man  who  could  defeat 
the  political  combination  which  had  been  formed  against  it. 

It  certainly  is  no  secret  that  among  the  states  of  the  Union,  New  York 
has  endured  its  full  share  of  that  reckless  disregard  of  the  rules  of  sound 
finance  which  has  characterized  the  rapid  development  of  our  public  utili- 
ties in  the  last  fifty  years.  In  fact,  we  have  had  rather  more  than  our 
share  of  the  violation  of  monetary  sanity  and  economic  morals  (to  say 
nothing  of  economic  decency)  that  has  accompanied  that  development. 
The  scandals  attendant  upon  the  earlier  operations  of  the  New  York 
Central  Railroad,  the  performances  of  Jim  Fiske  and  his  printing  press  in 
the  manipulations  of  the  I£rie,  the  story  of  Jacob  Sharpe  and  his  Broad- 
way franchise,  and  last  but  not  least  the  Interborough-Metropolitan 
merger,  are  only  the  more  striking  chapters  in  a  long  story  of  intrigue, 
corruptif)n,  and  disgrace.  The  annals  of  almost  every  city  in  the  state 
can  show  their  own  version  of  the  combination  of  scheming  promoters, 
.selfish  investors,  uninterested  citizens,  and  greedy  politicians;  their  own 

1  From  the  Atlantic  Monthly,  April,  1908.    Reproduced  by  permission. 


THE  STATE  ADMINISTRATION  24 1 

record  of  valuable  rights  given  away  without  foresight  and  often  with  the 
most  revolting  concomitants  of  bribery  and  corruption. 

It  would,  of  course,  be  grossly  unfair  to  blame  the  condition  of  things 
which  resulted  entirely  upon  the  corporations  which  were  formed  to  de- 
velop the  public  utilities  and  to  which  the  public  grants  or  franchises  were 
given.  At  the  best  they  were  developing  services  of  vast  importance 
to  the  communities ;  at  the  worst  we  can  only  say  that  it  seems  to  be 
human  nature  with  too  many  people  in  the  business  world  to  grasp  at 
what  seems  to  be  for  their  greatest  pecuniary  advantage,  without  trou- 
bling themselves  very  much  about  general  ethical  considerations.  On  the 
other  hand  the  "plain  people"  —  the  very  ones  who  ought  to  be  most 
interested  in  good  government  —  have  seemed  to  be  the  very  ones  most 
unconcerned. 

For  a  number  of  years,  however,  there  has  been  developing  a  distinct 
change  in  the  temper  of  the  public  mind  toward  such  matters.  There 
has  arisen  a  renewed  sense  of  the  hatefulness  of  public  dishonesty,  a  re- 
newal of  belief  in  the  public  trust  involved  in  public  office.  If  some  of 
the  manifestations  of  awakened  conscience  seem  rather  too  overstrained 
and  sensational  to  be  quite  sound  or  lasting,  yet  such  states  of  mind 
often  aid  in  producing  important  political  results  —  as  was  the  case  in 
the  autumn  of  1906. 

At  that  time  there  seemed  to  come  about  a  political  crisis  as  sudden 
as  it  was  unexpected,  although  to  the  more  farsighted  it  had  been  in 
truth  preparing  for  several  years.  A  not  unnatural  sense  of  injury  and 
grievance  had  grown  up  as  the  public  had  followed  the  testimony  in  dif- 
ferent investigations  which  seemed  to  open  up  ever  new  vistas  of  cor- 
ruption ;  as  it  had  followed  the  proceedings  in  the  Standard  Oil  cases ; 
had  perused  the  highly  colored  revelations  of  "  high  finance  "  —  by  "  one 
of  themselves  "  ;  and  had  watched  the  proceedings  of  various  reckless 
promoters  and  financiers,  seeing  those  favored  individuals  amassing  vast 
fortunes  the  origin  of  which  lay  in  the  public  franchises  which  had  been 
procured  upon  such  easy  terms. 

It  is  at  periods  like  this,  when  the  people  has  lost  confidence  in  its 
servants,  in  its  old  leaders,  in  the  very  framework  of  the  social  structure, 
—  apparently  almost  losing  faith  in  democratic  self-government  itself,  — 
and  is  calling  for  some  political  Moses  to  lead  it  out  of  bondage,  that 
there  comes  the  moment  eagerly  awaited  by  the  demagogue.  Trading 
upon  the  righteous  anger  of  the  just,  upon  the  prejudices  of  the  unrea- 
soning, upon  the  cupidity  of  the  mercenary,  upon  the  timidity  of  the  pol- 
itician, the  demagogue  becomes  suddenly  a  menace  to  society — a  menace, 
not  because  he  may  not  be  entirely  right  in  his  analysis  of  the  situation, 
but  because  from  the  nature  of  the  case  he  is  a  destructive  and  not  a 
constructive  force,  and  because  he  is  always  seeking,  not  how  to  apply 
genuine  remedies,  not  how  to  safeguard  the  interests  of  the  mass,  but 
only  how  to  turn  the  situation  to  his  own  personal  advantage  ;  a  menace, 


242  AMERICAN  STATE  GOVERNMENT 

because,  even  if  he  is  honest  in  his  aims,  he  has  faith  in  progress  by 
revolution  rather  than  progress  by  evolution,  believing  in  miracles  rather 
than  in  science. 

It  is  distinctly  to  the  credit  of  the  people  of  New  York  state  that  in 
the  midst  of  a  genuine  crisis  of  political  feeling  there  should  have  been 
shown  such  careful  weighing  of  all  considerations  before  political  action ; 
that  amid  forceful  appeals  to  passion  and  prejudice,  based  upon  undoubted 
public  grievances,  there  should  have  been  upon  both  sides  so  much  honest 
endeavor  to  think  clearly  and  act  justly.  Probably  at  no  election  ever  held 
in  New  York  state  was  there  so  complete  a  breakdown  of  the  ordinary 
political  barriers.  Republicans  by  thousands  voted  the  Democratic  ticket 
in  whole  or  in  part ;  Democrats  by  thousands  voted  the  Republican  ticket 
in  whole  or  in  part.  \\'hile  outwardly  old  party  forms  were  maintained,  in 
reality  party  ties  in  a  large  measure  ceased  to  exist. 

As  the  campaign  developed  it  became  a  genuine  choice  between  one 
who  preached  the  gospel  of  disorder,^  under  cover  of  a  righteous  outbreak 
against  existing  conditions  on  the  one  side,  and  on  the  other  an  exponent 
of  calm,  sane,  and  orderly  progress.  And  it  is  a  humorous  illustration  of 
the  irony  of  history  that  the  Republican  party,  which  of  the  two  political 
parties  may  fairly  be  held  far  the  more  responsible  for  the  evils  of  the 
situation,  should  have  been  the  one  to  place  in  nomination  the  genuine 
reformer;  while  the  Democratic  party  should  have  thrown  away  the 
chance  of  a  generation  by  allowing  its  opponents  to  play  once  more 
the  old  game  so  aptly  described  by  Disraeli  at  the  time  of  the  repeal  of 
the  Corn  Laws,  when  he  averred  that  Peel  had  caught  the  Whigs  in 
bathing  and  had  run  off  with  their  clothes. 

The  result  of  the  election  was  to  seat  in  the  governor's  chair  an  able 
and  successful  lawyer,  a  Republican,  who  aims  always  to  place  state 
interests  before  partisan  advantage,  a  man  of  the  sincerest  and  most  con- 
firmed honesty,  of  a  high  ideal  of  public  service,  of  determined  convictions 
yet  open  mind  ;  moreover,  a  man  who  realized  fully  that  his  election  was 
simply  an  expression  of  public  confidence  in  him  personally  in  the  midst 
of  his  party's  defeat.  Governor  Hughes  realized  to  the  full  the  political 
difficulties  of  the  situation  and  the  dangerous  temper  of  the  public  mind, 
along  with  the  genuine  grievances  which  lay  behind  and  were  the  cause 
of  it ;  so  he  at  once  set  himself  to  grapple  with  the  problem  in  the  calm 
temper  of  a  true  statesman.  The  Public  Service  Commissions  Bill  was 
the  outcome. 

The  law  as  it  was  passed  contains  five  articles,  the  main  points  of  which 
may  be  briefly  touched  upon. 

I .  By  Article  One  the  state  is  divided  into  two  districts,  with  a  separate 
and  independent  commission  for  each.    The  first  district  includes  what  is 

1  "  As  between  Kottcnness  and  Riot,"  said  Mr.  Bourke  Cochran,  when  defending  his  can- 
didate at  the  Buffalo  Convention,  "  I  prefer  Riot."  A  unique  way,  certainly,  of  recommending 
a  nominee  for  governor. 


THE   STATE  ADMINISTRATION 


243 


known  as  Greater  New  York,  —  the  four  counties  of  New  York,  Kings, 
Queens,  and  Richmond  (or  New  York  City,  Brooklyn,  Long  Island  City, 
and  Staten  Island),  —  and  the  second  includes  all  other  counties  in  the 
state.  This  division,  suggested  by  the  great  difference  in  character  of  the 
problems  in  the  two  districts,  has  been  already  justified  by  experience. 

The  ten  commissioners,  five  for  each  district,  are  appointed  by  the 
governor  subject  to  the  approval  of  the  Senate,  but  removable  by  the  gov- 
ernor alone.  They  must  have  no  official  relation  to  any  corporation  sub- 
ject to  the  provisions  of  the  act,  nor  own  stocks  or  bonds  therein.  Neither 
shall  they  ask  the  appointment  of  any  person  to  office  by  such  corpora- 
tions or  receive  from  them  any  pass  or  reduction  in  fare. 

Each  commission  appoints  its  own  counsel,  secretary,  and  minor  em- 
ployees, and  each  single  commissioner  has  full  power  to  hold  investigations 
and  hearings,  although  an  order  must  be  approved  by  the  commission 
before  it  becomes  operative.  The  commission  is  not  bound  by  the  techni- 
cal rules  of  evidence,  but  is.  free  to  get  at  the  facts  in  the  quickest  and 
simplest  way  possible.  All  witnesses  are  duly  protected,  and  the  com- 
mission can  force  attendance  and  secure  testimony,  refusal  constituting 
a  misdemeanor. 

2.  Article  Two  prescribes  the  duties  of  common  carriers,  which  term 
includes,  according  to  the  wording  of  the  act,  "  all  railroad  corporations, 
street-railroad  corporations,  express  companies,  car  companies,  sleeping- 
car  companies,  freight  companies,  freight-line  companies,  and  all  persons 
and  associations  of  persons,  whether  incorporated  or  not,  operating  such 
agencies  for  public  use  in  the  conveyance  of  persons  or  property." 

Common  carriers  shall  furnish  to  the  public  "  such  service  and  facilities 
as  shall  be  safe  and  adequate  and  in  all  respects  just  and  reasonable  "  ; 
and  "  all  charges  made  or  demanded  .  .  .  shall  be  just  and  reasonable  and 
not  more  than  allowed  by  law  or  by  order  of  the  commission."  They 
shall  provide  proper  switch  and  side-track  connections,  and  shall  file  and 
keep  open  for  "  public  inspection  schedules  showing  the  rates  of  fare  and 
charges  for  the  transportation  of  passengers  and  propert}\" 

There  shall  be  no  special  rate,  rebate,  or  unjust  discrimination  of  any 
kind ;  no  "  free  ticket,  free  pass,  or  free  transportation  of  passengers 
or  property,"  exception  being  made  of  officers  of  the  railway  and  cer- 
tain other  specified  individuals.  But  this  provision  is  not  to  prevent  the 
issuing  of  mileage  or  commutation  tickets. 

There  must  be  sufficient  and  suitable  cars  for  freight  in  carload  lots ; 
sufficient  cars  and  motive  power  on  railroads  and  street  railroads  to  meet 
all  requirements  for  the  transportation  of  passengers  and  property ;  the 
commission  being  expressly  given  power  to  make  suitable  regulations  for 
the  furnishing  of  freight  cars  and  for  demurrage  charges. 

3.  Article  Three  continues  the  provisions  relating  to  common  carriers, 
dealing  especially  with  the  powers  of  the  commission  for  carrying  the 
provisions  of  Article  Two  into  effect. 


244  AMERICAN  STATE  GOVERNMENT 

Power  is  given  to  the  commission : 

(a)  To  examine  into  the  general  condition,  capitalization,  franchises, 
and  management  of  all  common  carriers ; 

(p)  To  examine  all  books,  contracts,  records,  documents,  and  papers, 
and  to  compel  their  production  ; 

(c)  To  conduct  hearings  and  take  testimony  on  any  proposed  change 
of  law  when  requested  to  do  so  by  the  legislature,  by  the  Senate  or 
Assembly  Committee  on  Railroads,  or  by  the  governor ; 

(d)  To  prescribe  the  form  of  annual  reports ;. 

(e)  To  investigate  accidents  ; 

(/)  To  investigate  as  to  any  act  done,  or  omitted  to  be  done,  in  viola- 
tion of  law  or  of  any  order  of  the  commission ; 

(g)  To  fix  rates  and  service ; 

(A)  To  order  repairs,  improvements,  or  changes  in  tracks,  switches, 
terminals,  motive  power,  or  any  other  property  or  device,  in  order  to 
secure  adequate  service ; 

(i)  To  order  changes  in  time  schedules  by  increasing  the  number  of 
trains,  cars,  or  motive  power,  or  by  changes  in  the  time  of  starting  its 
trains  or  cars ; 

(/)  To  establish  a  uniform  system  of  accounts  and  prescribe  the 
manner  in  which  they  shall  be  kept. 

The  approval  of  the  commission  is  necessary  for  various  things.  With- 
out it 

(a)  No  construction  of  a  railroad  or  street  railroad,  or  extension  of 
existing  lines,   shall  be  begun ; 

(I?)  No  franchise  shall  be  assigned  or  transferred ; 

(c)  No  railroad  or  street  railroad  or  other  stock  corporation  shall  pur- 
chase or  hold  any  capital  stock  of  any  other  road  ; 

(</)  No  stocks,  bonds,  notes,  or  other  evidences  of  indebtedness  (ex- 
cept notes  payable  within  twelve  months)  shall  be  issued  ; 

(e)  No  merger  or  consolidation  of  existing  companies  shall  be  made ; 
and  in  case  such  merger  is  approved,  it  is  provided  that  the  capital 
stock  of  the  merger  shall  not  exceed  the  sum  at  par  of  the  capital 
stock  of  the  corporations  so  consolidated  or  any  additional  sum  paid 
in  cash. 

The  penalties  for  failure  to  comply  with  an  order  of  the  commission 
are  drastic.  Each  day's  violation  constitutes  a  separate  offense,  and  for 
each  offense  the  penalty  is  $5000  if  by  a  common  carrier,  $1000  if  by 
other  than  a  common  carrier.  Every  individual  who  aids  or  abets  any 
violation  of  an  order  of  the  commission,  or  who  fails  to  obey,  or  aids  or 
abets  any  corporation  in  its  failure  to  obey,  is  guilty  of  a  misdemeanor. 
In  case  the  commission  believes  that  a  common  carrier  is  violating  the 
law  or  an  order  of  the  commission,  it  may  commence  an  action  to  secure 
relief  by  way  of  mandamus  or  injunction,  and  the  court  shall  require  an 
answer  within  twenty  days. 


THE  STATE  ADMINISTRATION 


245 


4.  Article  Four  applies  practically  similar  provisions  to  the  gas  and 
electric  companies.  It  also  provides  for  inspection  of  all  gas  and  electric 
meters.  The  commission  has  the  right  to  fix  rates  upon  proper  complaints 
as  to  quality  or  price,  not  only  of  that  supplied  by  private  persons  and 
corporations,  but  of  that  supplied  by  municipal  lighting  plants  as  well ;  it 
has  power  to  examine  the  books  and  affairs  of  the  producers,  to  approve 
of  all  incorporation  and  franchises,  and  of  all  stocks,  bonds,  and  other 
indebtedness ;  in  short,  this  article  is  similar  in  aim  to  the  preceding,  al- 
though, having  been  drafted  with  less  success,  it  is  in  places  somewhat 
obscure.  It  is  to  be  hoped  that  amendments  to  the  law  will  soon  remedy 
these  defects. 

5.  In  Article  Five  the  act  comes  to  an  end  with  the  abolition  of  the 
former  Railroad,  Gas  and  Electricity,  and  New  York  City  Rapid  Transit 
commissions,  and  the  state  inspectors  of  gas  meters,  followed  by  the 
necessary  provisions  for  the  transfer  of  records,  the  continuance  of 
pending  actions  and  proceedings,  and  the  necessary  appropriations. 

But  there  has  not  been  mentioned  the  most  vital  and  far-reaching 
clause  of  the  bill.  In  Section  55  occurs  the  following:  "  The  commission 
shall  have  no  power  to  authorize  the  capitalization  of  a7iy  franchise  or  the 
right  to  own,  operate,  or  enjoy  any  franchise  whatever  in  excess  of  the 
a7Hount  (exclusive  of  any  tax  or  annual  charge^  actually  paid  to  the  state 
or  to  a  political  subdivision  thereof  as  the  consideration  for  the  grant  of 
such  franchise  or  right  J'  In  other  words,  the  law  decrees  that  hereafter 
the  grant  given  by  state  or  municipality  shall  not  be  treated  as  a  private 
asset  of  the  corporation  and  its  value  represented  in  stock,  but  that  the 
value  of  the  franchise  and  the  increment  thereof  shall  remain  forever 
the  property  of  the  state. 

To  call  this  law  a  piece  of  radical  legislation  is  to  speak  mildly ;  it 
seems  to  mark  an  epoch  in  the  history  of  New  York  state ;  for  the 
corporations  affected  by  the  stringent  provisions  of  the  law  are  among 
those  upon  which  the  whole  structure  of  our  present  business  system 
rests.  Without  the  railroads  modern  commerce  would  be  impossible ; 
without  the  street  railroads  our  cities  could  not  spread  their  vast  popu- 
lations out  into  their  ever-growing  suburbs,  and  social  conditions  would 
be  completely  altered ;  gas  and  electricity  are  not  merely  essential  to 
our  comfort,  they  are  necessary  to  the  existing  order,  —  all  of  these  pub- 
lic utilities  are  vital  elements  in  the  lives  of  every  one  of  us,  and  a  law 
which  compels  such  a  complete  readjustment  of  their  relations  to  the 
state  on  the  one  side  and  the  public  on  the  other  is  not  merely  radical, 
it  is  revolutionary. 

To  many  people  the  bare  suggestion  that  state  or  municipality  shall 
undertake  to  regulate  any  business  hitherto  in  private  hands  is  at 
once  denounced  as  "socialism."  I  must  confess  to  having  only  the 
vaguest  notion  of  what  "  socialism  "  is,  but  judging  from  the  current 
use  of  the  term  it  means  anything  you  want  the  state  to  do  that  I  do 


246  AMERICAN  STATE  GOVERNMENT 

not  want  it  to  do.  It  has  been  urged  against  the  Public  Service  Com- 
missions Law  that  it  is  "  socialism."  Perhaps  it  is ;  but  people  are  not 
going  to  be  frightened  by  a  mere  word.  Before  we  begin  to  tremble, 
suppose  we  look  the  facts  squarely  in  the  face  and  see  what  this  law  is 
intended  to  accomplish,  and  recall  why  it  seemed  necessar}'  for  such  a 
law  to  be  passed.  And  it  might  be  well  for  us  to  disabuse  our  minds 
of  preconceived  notions  and  prejudices  for  things  as  they  are,  and  think 
rather  of  things  as  they  ought  to  be. 

The  English  race,  including  ourselves  as  at  least  a  political  branch 
thereof,  has  certainly  never  shown  any  great  liking  for  monopolies. 
When  such  were  fostered  by  government  and  bestowed  by  royal  pre- 
rogative they  were  the  objects  of  popular  hatred  and  the  causes  of  re- 
bellion ;  and  the  feeling  against  them  to-day  is  less  strong  only  because 
we  have  felt  ourselves  to  so  large  an  extent  free  of  them.  Some  of  us, 
to  be  sure,  have  seen  in  the  iniquities  of  our  tariff  some  of  the  worst 
features  of  monopolies  ;  but  we  have  never  as  yet  succeeded  in  impress- 
ing these  views  ver)-  deeply  upon  the  mass  of  our  fellow  citizens.  The 
general  public,  feeling  that  it  owned  and  could  control  the  government, 
has  been  singularly  careless  and  thoughtless  in  the  matter  until  of  late ; 
for  it  felt  that  in  any  event  the  remedy  was  close  at  hand.  The  old 
cure  for  monopolies  was  a  simple  one,  —  abolish  government  protection 
and  let  competition  have  its  way.  And  in  most  cases  where  a  monopoly 
seeks  to  control  the  output  of  some  ordinary  article  of  trade  or  manu- 
facture, this  remedy  has  been  successful ;  and  the  belief  that  "  compe- 
tition is  the  life  of  trade  "  has  been  until  lately  one  of  the  articles  of 
commercial  orthodoxy. 

When  our  great  modern  public  utilities  first  came  into  being,  they 
were  not  recognized  as  infant  monopolies.  When  a  man  wished  to  build 
a  railroad  he  was  regarded  only  as  a  daring  adventurer  who  was  about 
to  start  a  new  and  superior  line  of  coaches  on  a  strange  private  high- 
way, —  merely  a  new  element  of  competition.  It  was  the  same  with  a 
gas  company,  gas  being  at  first  only  a  new-fangled  light  tr)'ing  to  prove 
its  doubtful  superiority  over  lamps  and  candles.  Electricity  was  in  its 
turn  only  a  competitor  of  gas ;  a  street-car  line  a  competitor  of  the 
more  expensive  cab  company  ;  an  interurban  trolley  a  competitor  of  the 
railway.  All  these  were  merely  new  and  comparative  conveniences 
which  science  was  putting  within  our  reach,  which  we  could  trust  private 
ownership  to  develop,  and  which  competition  would  regulate.  The 
ordinary  American  merchant  or  manufacturer,  intent  upon  his  own 
business  and  satisfied  if  he  was  making  it  pay,  was  also  satisfied  if  he 
was  getting  from  railroad,  express  company,  telegraph,  or  telephone  the 
service  that  his  own  particular  business  required  ;  and  he  was  little 
inclined  to  question  the  right  of  investors,  who  were  bringing  to  him  the 
business  advantage  of  a  very  useful  public  service,  to  do  what  he  him- 
self was  doing,  —  make  as  much  money  as  possible  on  the  investment. 


THE  STATE  ADMINISTRATION 


247 


And  while  merchants  and  manufacturers  were  thus  absorbed  and 
the  general  public  indifferent,  what  was  originally  a  mere  competitive 
public  convenience  was  fast  becoming  a  public  utility ;  and  then,  before 
we  realized  it,  it  had  become  an  absolute  public  necessity.  We  sud- 
denly woke  to  find  the  business  world  struggling  to  readjust  itself  to 
new  and  strange  conditions,  —  to  the  pressure  of  brutal  bigness :  enor- 
mous railway  systems,  gigantic  mergers,  world-wide  trusts,  accumulators 
of  fabulous  millions  ;  the  vast  scale  of  the  operations  seemed  in  itself 
terrifying. 

The  old  theory  was  that  railroad  or  gas  company,  trolley  or  power 
company,  under  a  minimum  of  public  supervision,  should  be  managed 
like  private  business  corporations,  — •  primarily,  if  not  exclusively,  for  the 
financial  benefit  of  the  investors.  To  be  sure,  under  the  fostering  care 
of  the  older  generation  of  railroad  manipulators,  that  theory  received 
some  rather  severe  shocks,  and  we  realized  that  the  investors  frequently 
failed  to  get  their  share  of  the  profits ;  nevertheless,  whatever  the  prac- 
tice, the  theory  was  still  held  to  be  sound.  But  under  the  new  order, 
our  ideas  have  changed,  as  we  have  seen  these  great  railroad  systems 
utilized  by  commercial  monopolies  to  fasten  their  hold  upon  the  public 
and  crush  out  competition  with  remorseless  vigor ;  as  we  have  seen 
valuable  franchises  secured  for  favored  individuals,  all  too  frequently  by 
methods  utterly  abhorrent  both  in  law  and  morals ;  as  we  have  come  to 
realize  the  power  which  lies  in  the  hands  of  an  irresponsible  board  of 
directors  to  stimulate  artificially  one  community  while  it  may  destroy 
another ;  as  the  knowledge  has  been  slowly  burned  into  our  conscious- 
ness that  public-service  corporations  were  after  all  managed  by  men 
very  human  in  their  weaknesses,  greedy  for  power  and  wealth,  and  no 
more .  successful  in  resisting  temptation  than  the  rest  of  mankind. 
Studying  these  corporations  more  closely,  we  have  seen  the  newer  com- 
panies —  railroads,  interurban  electric  roads,  and  lighting  companies  — 
being  managed  primarily  if  not  exclusively  for  the  benefit,  not  of  the 
investors,  but  of  those  who  could  induce  investors  to  invest.  A  new 
form  of  human  pest  has  thus  made  its  appearance,  —  the  promoter  ;  and 
a  new  science  of  commerce  and  banking  has  made  its  appearance, 
which  I  think  has  not  been  named  yet.  "  New,"  did  I.say  ?  To  some 
of  us  these  new  friends  look  most  uncommonly  like  our  old  acquaint- 
ances Dick  Turpin  and  Jack  Sheppard  in  a  fresh  disguise ;  and  the 
new  commerce  and  banking  have  a  most  unseemly  resemblance  to  an 
old  amusement  known  as  highway  robbery.  Wordsworth's  Rob  Roy 
was  not  the  first  to  invent  that 

Good  old  rule  .  .  .  the  simple  plan, 

That  they  should  take,  who  have  the  power, 

And  they  should  keep  who  can. 

Nor  has  he  been  the  last. 


248  AMERICAN   STATE  GOVERNMENT 

In  this  latest  variation  of  the  old  game  the  interests  of  the  investor 
and  the  interests  of  the  public  alike  have  been  overlooked  ;  but  it  is  all  a 
very  logical  outcome  of  the  original  mistake,  —  the  theor}^  that  a  public 
utility  is  a  mere  matter  of  private  business.  We  should  not  therefore 
expend  our  rhetoric  against  the  corporations,  —  they  were  often  more 
sinned  against  than  sinning ;  for  had  it  not  been  for  our  own  blindness 
they  would  never  have  been  left  to  pursue  their  objects  too  frequently  in 
what  now  seems  to  us  a  highly  predatory  manner. 

If  it  has  taken  us  a  long  time  to  realize  that  public-service  corporations 
are  in  their  nature  monopolistic,  it  is  also  taking  us  a  long  time  to  get 
over  the  idea  that  the  safeguard  of  the  public  is  competition.  Therefore, 
legislatures  have  chartered  rival  railroads,  and  common  councils  have 
granted  franchises  to  rival  trolley,  gas,  and  electric  companies,  only  to 
find  that  almost  inevitably,  after  a  brief  period  of  cutthroat  competition, 
with  threatened  failure  to  both  companies,  there  was  a  consolidation, 
overcapitalization,  and  relatively,  if  not  actually,  higher  charges  ;  and  thus 
for  the  poor  consumer  the  last  state  was  worse  than  the  first. 

In  New  York  we  seem  at  last  to  have  waked  up  to  the  fact  that  in 
these  public  utilities  there  not  only  never  has  been  any  genuine  competi- 
tion, but  from  the  nature  of  the  case  there  never  could  be ;  we  are  also 
learning  that  if  justice  is  to  be  done  to  the  public  as  well  as  to  the  cor- 
poration, —  to  tlie  buyer  as  well  as  to  the  seller,  —  something  else  must 
be  substituted  in  place  of  competition,  and  that  something  we  are  now 
to  try  in  the  shape  of  state  regulation. 

The  policy  of  state  interference  in  any  business  is  not  one  that  we 
naturally  take  kindly  to  in  this  country,  and  we  have  certainly  not  been 
hasty  in  trying  it  in  New  York  state.  So  long  ago  as  1879  the  Hepburn 
Committee  investigation  pointed  out  some  of  the  evils  of  rebates  and 
other  railway  practices  as  clearly  as  has  ever  been  done,  yet  it  was  1906 
before  the  legislature  took  any  effective  action  in  regard  to  the  matter ; 
and  our  municipalities  as  well  as  the  state  have  been  very  slow  to  exert 
their  powers.  Of  course  opinions  will  continue  to  differ  as  to  the  advis- 
ability of  state  interference,  but  in  the  judgment  of  those  who  read  best 
the  trend  of  the  public  mind,  the  time  has  gone  by  when  there  can  be 
much  dispute  over  the  main  contention  ;  tlie  only  question  is  how  far  the 
state  shall  go.  I-'or  the  exact  point  where  private  action  may  best  end, 
and  the  community  itself  should  take  hold,  has  certainly  not  been  dis- 
covered yet ;  nor  is  it  likely  ever  to  be  settled,  for  social  conditions  shift 
quite  as  rapidly  as  social  experiments  are  made,  and  where  can  we  draw 
the  dividing  line  ? 

Some  lawyers  will  tell  us  tliat  there  is  no  dividing  line  in  this  particular 
matter,  that  there  is  no  essential  difference  between  a  public-service  cor- 
poration and  any  other,  and  that  it  is  simply  a  question  of  i)ublic  policy 
as  to  what  business  the  state  shall  undertake  to  regulate  and  what  it 
shall  leave  without  interference.    Others  will  say  that  however  hard  it  is 


THE  STATE  ADMINISTRATION  249 

to  draw  a  dividing  line,  yet  there  is  certain  territor}'  which  is  quite  ob- 
viously on  one  side  of  the  line,  wherever  the  line  may  be,  and  certain 
territor)'  quite  as  obviously  on  the  other.  Also  it  seems  to  be  true  that  a 
certain  business  may  stand  on  one  side  of  the  line  in  one  generation  and 
occupy  the  other  side  in  the  next.  For  many  centuries  it  was  public 
policy  to  subject  the  innkeeper  to  stringent  regulation  in  the  public  in- 
terest ;  but  with  the  growth  of  modern  conditions  it  has  ceased  to  be 
necessary^  and  a  modem  hotel  company  can  hardly  be  classed  as  a  public- 
ser\'ice  corporation.  On  the  other  hand,  when  a  virtual  monopoly  in  the 
supply  of  some  necessity  of  life  has  come  into  existence,  that  business 
certainly  is  drifting  over  the  line  into  territor}^  where  some  sort  of  public 
regulation  seems  inevitable. 

All  the  businesses  which  are  placed  under  the  jurisdiction  and  super- 
vision" of  the  New  York  Public  Ser\-ice  commissions  are,  more  or  less, 
monopolies  depending  upon  some  form  of  public  grant  or  franchise. 
Not  only  are  our  railways  great  state  highways,  but  the  companies  that 
own  them  own  also  the  means  of  traversing  them  and  of  transporting 
goods  along  them.  Our  street  railways  occupy  the  public  thoroughfares 
under  exclusive  grants  from  municipalities.  The  gas  companies  must  get 
permission  from  the  city  to  dig  up  the  public  streets,  and  electric  light 
companies  to  erect  their  poles.  Express,  freight-line,  and  sleeping-car 
companies  only  supplement  the  work  of  the  railway.  Not  one  would  be 
able  to  exist  except  for  the  public  grant  which  is  its  foundation ;  it  is 
therefore  to  the  state  that  we  must  now  turn  for  relief  against  the  power 
of  the  monopolies  which  have  been  allowed  to  rise  upon  that  foundation. 

When  we  come  to  a  consideration  of  these  franchises  the  first  thing 
we  find  is,  that,  although  in  most  cases  the  corporation  had  paid  nothing 
to  the  state  or  municipality  for  the  franchise,  yet  no  sooner  has  the  fran- 
chise been  secured  than  it  has  been  capitalized,  often  at  an  enormously 
inflated  valuation,  and  the  resulting  securities  have  been  marketed  in  the 
same  way  as  those  for  which  good  solid  cash  has  been  paid. 

Now,  as  a  matter  of  fact,  the  value  of  a  franchise  is  ver)'  fluctuating, 
—  a  thing  impossible  to  fix.  The  franchise  of  a  nonexistent  railroad  is 
of  no  inherent  value ;  on  the  other  hand  the  value  of  the  same  franchise, 
after  fifty  years'  development  of  the  road  and  growth  of  the  communities 
about  it,  may  almost  exceed  imagination  ;  but  since  the  state  has  claimed 
the  right  to  regulate  rates,  thus  demolishing  the  theor)^  that  the  railroad 
conducts  a  private  business,  the  value  of  every  railroad  franchise  in  the 
state  as  a  basis  for  an  issue  of  securities  is  ver}^  materially  diminished  if 
not  obliterated. 

If  the  franchise  is  something  of  value,  the  state  should  certainly  not 
give  it  away ;  if  it  is  of  no  value,  then  the  corporation  should  not  capi- 
talize it ;  but  to  secure  it  for  nothing  and  then  capitalize  it,  is  "  special 
privilege  "  with  a  vengeance.  The  worst  of  the  matter,  however,  is  this, 
that  when  the  corporation  proceeded  to  capitalize  the  franchise,  upon 


250  AMERICAN  STATE  GOVERNMENT 

the  theor)^  that  it  represented  an  asset  upon  which  returns  in  the  shape 
of  dividends  should  be  paid,  — -  the  same  as  if  it  were  money  invested  in 
the  enterprise,  —  the  corporation  was  on  the  one  hand  receiving  from  the 
state  a  gift  of  more  or  less  value,  and  on  the  other  forcing  the  state  to 
pay  perpetual  tribute  upon  the  ver\'  thing  it  had  given  away  —  to  the  tune 
of  many  times  its  actual  value  when  the  promoters  were  clever  enough 
to  "  discount  the  future  "  in  their  issues  of  stock.  When  you  come  to 
dissect  the  matter  and  look  it  over  coolly,  it  does  seem  as  if  this  were  on 
the  whole  the  most  skillful  confidence  game  which  has  ever  been  worked 
on  the  public  ;  for  the  experienced  financier,  after  capitalizing  his  fran- 
chise, could  unload  the  watered  securities  on  the  "  widow  and  orphan," 
and  place  the  resulting  cash  in  "  gilt-edged  "  investments  far  removed 
from  inquisitive  legislators  and  public-ser\-ice  commissions. 

This  is  not  saying  —  and  let  this  point  be  made  quite  clear — that 
there  have  not  been  many  noble  and  high-minded  men  connected  with 
our  public-ser^ace  corporations ;  that  the  development  of  public  utilities 
has  not  been  of  immense  value  to  the  community ;  nor  that  they  have 
not  often  been  conducted  with  the  highest  motives  of  philanthropic  enter- 
prise. But  it  is  an  assertion  that  the  theory  underlying  the  treatment  of 
the  franchise  was  wrong  and  the  system  built  upon  it  was  bad,  and  that 
the  time  has  now  come  to  open  our  eyes  and  look  facts  squarely  in  the 
face.  When  we  do  so,  we  find  that  the  right  of  the  legislature  of  state  or 
city  to  give  away  a  franchise  in  perpetuity  cannot  be  successfully  defended. 

The  legislature  is  the  agent  of  the  existing  population,  and  its  members, 
as  our  accredited  representatives,  may  barter  away  present  rights,  yours 
or  mine  of  to-day ;  but  they  may  not  dispose  of  rights  which  belong  to 
our  children  and  our  children's  children  as  much  as  to  us,  for  the  future 
is  not  ours  to  give.  They  may  allow  private  development  and  manage- 
ment of  public  utilities  for  the  sake  of  immediate  public  advantage,  and 
any  such  investment  should  be  protected  from  unjust  and  unreasonable 
competition,  and  should  be  held  sacred  for  the  investors ;  but  the  fran- 
chise itself  is  something  which  may  not  be  given  away,  because  it  is  not 
within  the  province  of  the  legislature  to  give  away  that  which  does  not 
belong  to  the  existing  community.  A  franchise  granted  by  the  legislature 
of  fifty  years  ago,  for  instance,  belonged  then  to  us  of  to-day  quite  as 
much,  if  not  more,  than  to  our  grandfathers,  who  handed  it  over  to 
some  railroad  in  perpetuity  ;  it  belongs  to  us  now,  as  it  will  belong  to  our 
grandchildren  in  their  turn.  The  action  of  the  legislature  of  two  generations 
ago  in  giving  away  our  birthright  is  not  morally  a  binding  contract  upon 
us  to-day,  when  it  comes  in  conflict  with  present  or  future  public  interest ; 
and  the  vested  rights  of  the  private  inheritors  of  that  franchise  will  not 
finally  stand  when  they  come  in  conflict  with  the  vested  rights  of  the  state. 

Some  people  will  tell  you  that  the  state  is  nothing  more  than  the  sum 
of  its  inhabitants  ;  and  that  when  you  sjx-ak  of  the  state  as  more  than 
that,  you  are  using  the  term  of  a  sentimental  abstraction  which  does  not 


THE  STATE  ADMINISTRATION 


251 


exist.  Yet  any  man  who  can  feel  the  thrill  of  patriotism  knows  that  this 
is  not  so.  The  state  is  the  future  ;  it  is  the  sum  of  its  inhabitants  not  only 
of  to-day,  but  of  to-morrow,  the  day  after,  and  so  on  to  the  end  of  time. 
And  it  is  exactly  the  rights  of  the  state  of  the  future  that  have  been 
forgotten  in  our  dealing  with  the  public-service  corporations. 

There  are,  therefore,  three  parties  in  interest :  the  public,  the  commu- 
nity of  to-day,  demanding  fair  treatment  for  every  individual,  large  man- 
ufacturer or  small,  rich  and  poor  alike ;  the  public-service  corporation, 
demanding  just  and  liberal  treatment  for  those  who  are  willing  to  invest 
their  capital  in  developing  a  public  utility  ;  and  the  state,  standing  for  the 
whole  community  in  its  continuing  capacity  from  generation  to  genera- 
tion,—  from  now  into  the  far  distant  future,  —  and  demanding  that  these 
great  questions  shall  not  be  considered  as  of  to-day,  but  that  the  decision 
in  all  matters  of  public  policy  shall  take  the  road  which  leads  often  away 
from  immediate  results  toward  the  best  results  for  the  time  to  come. 
And  of  these  interests  the  last  is  by  no  means  the  least  important.  "  Con- 
science and  the  present  constitution  of  things  are  not  corresponding  terms. 
It  is  conscience  and  the  issue  of  things  which  go  together."  ^  It  is  because 
of  its  endeavor  to  restore  a  proper  balance  to  these  three  interests  that 
the  Public  Service  Commissions  Law  marks  so  great  a  step  in  advance. 

A  few  words  in  closing  as  to  the  practical  operation  of  the  law  in  New 
York.  The  commissions  have  been  in  existence  onlv  nine  months  —  and 
that  is  a  short  time  for  a  revolution  to  be  consummated ;  but  already 
experience  has  shown  the  immense  value  of  the  law.  Merchants  and 
manufacturers  have  a  powerful  tribunal  before  which  they  can  plead  for 
justice  and  efficiency ;  any  individual  with  a  well-grounded  complaint 
against  a  corporation  can  have  it  brought  to  its  attention  by  the  com- 
mission far  more  forcibly  than  he  himself  can  bring  it ;  the  issues  of 
stocks  and  bonds  by  these  corporations  are  for  the  first  time  subjected  to 
rigid  scrutiny,  and  it  is  safe  to  say  that  very  little  water  will  leak  into  such 
securities  in  the  future ;  —  in  ever\^  way  the  rights  and  interests  of  the 
public  are  being  safeguarded  as  never  before,  and  the  public  is  becoming 
aware  of  the  fact.  For  the  first  time  in  their  history  these  great  corpo- 
rations realize  fully  that  there  is  a  higher  power  above  them,  —  a  power 
to  which  the  public  can  now  appeal ;  they  have  been  shorn  of  their  abil- 
ity to  dispense  life  or  death  to  businesses,  to  tyrannize  over  individuals, 
or  to  ignore  the  interests  of  the  public,  for  above  them  is  the  state, 
demanding  justice  and  fair  treatment  for  every  one  of  its  citizens,  and 
enabled  to  enforce  its  demands. 

It  is  only  fair  to  add  that  on  their  part  the  corporations  have  shown 
both  good  sense  and  good  temper  in  accepting  the  law  graciously,  and 
doing  all  in  their  power  thus  far  in  carrying  out  its  provisions  and  the 
orders  and  requests  of  the  commission.  Many  a  complaint  never  reaches 
the  commission  ;  the  complaint  is  remedied  by  the  corporation  as  soon  as 

1  Davison ;  quoted  by  Matthew  Arnold  in  Literature  and  Dogma. 


252  AMERICAN  STATE  GOVERNMENT 

it  is  made  known.  In  truth,  the  wiser  among  the  corporation  managers 
see  plainly  that  the  law  will  be  their  best  defense  against  dangerous  legis- 
lation ;  that  the  commission  will  stand  as  a  barrier  against  injustice  to  the 
corporations  on  the  one  hand,  while  it  affords  relief  to  the  public  against 
injustice  on  the  other. 

It  will  lead  to  a  safer  and  better  condition  of  things  all  around :  the 
public  will  see  that  its  rights  are  safeguarded,  and  demagogic  appeals  will 
lose  their  force  and  effectiveness ;  the  corporations  will  be  protected 
against  destructive  competition  and  blackmail,  and  assured  of  a  fair  return 
on  honest  investment ;  hence  should  result  a  return  of  public  confidence 
in  the  securities  of  the  corporations,  —  which  ought  in  turn  to  be  as  good 
and  conservative  investments  as  any  municipal  bonds.  There  will  be  two 
classes  of  people,  but  I  think  only  two,  who  will  suffer  from  the  law,  — 
those  among  the  capitalists  and  promoters  who  are  too  greedy  to  be  con- 
tent with  their  fair  share,  who  wish  to  reap  where  they  have  not  sown  ;  and 
the  demagogues  and  agitators  who  will  feel  themselves  cheated  out  of 
their  best  weapons  of  attack.  But  if  both  these  classes  could  be  put  per- 
manently out  of  business  the  world  would  be  duly  grateful. 

That  all  these  desirable  things  will  come  at  once  no  one  will  expect ; 
that  they  are  coming,  and  that  the  Public  Service  Commissions  Law  will 
justify  the  expectations  of  its  promoter,  many  of  us  fervently  hope  and 
believe.  That  act  is  upon  the  statute  book  not  merely  because  a  governor 
of  New  York  wished  to  alter  the  law,  but  because  public  opinion  justly 
demanded  a  change  in  existing  conditions.  The  old  footing  of  the  pub- 
lic-service corporations  was  intolerable ;  something  new  had  to  be  substi- 
tuted for  the  false  and  outworn  theory  of  competition  in  order  to  protect 
the  public  and  the  state.  Governor  Hughes  recognized  the  voice  of  the 
people  demanding  reform,  and  the  result  was  an  effective  piece  of  legis- 
lation which  fairly  entitles  its  author  to  be  considered  as  that  rather  rare 
personality  in  American  politics,  —  a  constructive  statesman. 

For  my  own  part,  and  speaking  as  a  Democrat,  I  welcome  a  law  which 
seems  to  me  not  only  es.scntially  Democratic  in  principle,  but  in  line  with 
frequent  declarations  of  the  party  policy  —  an  effort  to  root  out  one  of 
the  most  insidious  forms  of  special  privilege,  and  to  regulate,  in  the  name 
of  the  people,  these  great  monopolies  which  have  been  for  many  years 
disturbing  factors  in  our  social  and  political  development. 

RAILWAY  REGULATION  1 

By  Governor  La  Foli.ktte 

With  respect  to  the  scope  of  a  law  creating  a  State  Railway  Com- 
mission, I  believe  that  the  most  careful  and  thorough  investigation  upon 
your  part  will  lead  to  the  conviction  that  the  commission  should  be  invested 

1  Message  of  1905. 


THE  STATE  ADMINISTRATION  253 

with  power  to  enforce  an  adequate  and  efficient  service,  always  taking 
into  consideration  the  circumstances  and  conditions  with  respect  to  the 
town,  city,  or  section  concerned.  It  is  as  necessar)^  that  the  efficiency  of 
the  service  should  be  under  the  control  of  the  state  as  it  is  that  there 
should  be  government  regulation  of  transportation  in  any  respect.  The 
character  of  the  service  is  quite  as  important  to  the  business  interests 
and  to  the  people  of  every  community  as  is  the  cost  of  the  ser\-ice. 

With  respect  to  the  regulation  of  rates,  I  have  no  doubt  that  you  will 
wisely  determine  to  clothe  the  commission  with  full  power  to  establish  a 
rate.  A  sufficient  objection  to  limiting  the  power  of  the  commission  to 
fixing  maximum  rates  is  that  the  railway  company  can  still  make  unjust 
discriminations  between  shippers  and  communities,  by  making  them 
special  rates  below  the  maximum  rate.  The  exercise  of  the  power  to 
make  an  absolute  rate  will  furthermore  insure  stability  in  rates,  which  is 
an  important  factor  in  the  conduct  of  every  business.  The  orders  of  the 
commission  that  establishes  a  rate  should  at  once  carry  the  rate  into  effect, 
to  continue  until  such  a  time  as  the  commission  shall  otherwise  order,  or 
the  courts  of  appeal  otherwise  determine,  if  an  appeal  should  be  taken. 

While  the  commission  should  doubtless  be  clothed  with  power  to  pro- 
mulgate entire  schedules  of  rates  and  classifications,  it  may  well  be  ques- 
tioned whether  such  action  upon  its  part  should  be  made  mandator}\  It 
would  appear  to  be  the  more  prudent  course  to  make  it  the  duty  of  the 
commission  to  establish  rates  with  respect  to  any  one  product  or  ship- 
ment, or  to  particular  lines  of  merchandise,  or  to  specified  commodities, 
as  from  time  to  time  their  importance  may  demand  consideration.  Thus, 
without  delaying  action  for  an  investigation  covering  the  entire  field  of 
state  commerce,  this  discretionary  power  would  enable  the  commission 
to  afford  relief  wherever  it  is  most  urgently  required.  Furthermore,  under 
such  a  course  the  commission  would  proceed  in  a  conservative  way,  hav- 
ing due  regard  to  the  pressing  needs  of  shippers  upon  the  one  hand,  and 
fair  consideration  of  the  rights  of  transportation  companies  upon  the 
other.  It  is  to  be  remembered  that  any  rates  established  by  any  com- 
mission cannot  be  maintained  unless  they  are  reasonably  remunerative  to 
the  railway  companies.  To  the  end,  therefore,  that  its  work  shall  have  a 
substantial  value  to  the  state,  it  is  necessary  that  the  commission  proceed 
with  that  caution  which  will  insure  the  maintenance  by  the  courts  of 
ever}'  rate  established,  should  the  action  of  the  commission  with  respect 
to  such  rates  be  appealed  by  the  corporations. 

Action  only  on  Complaint  destroys  Efficacy  of  Law 

While  it  should  be  made  the  duty  of  the  commission  to  investigate  all 
complaints,  I  am  strongty  of  the  opinion  that  their  action  should  not  be 
made  to  depend  upon  the  filing  of  such  complaint.  With  the  best  protec- 
tion which  the  commission  can  afford  to  shippers,  when  such  commission 


^54 


AMERICAN  STATE  GOVERNMENT 


is  fully  clothed  with  authority  to  regulate  the  transportation  service,  it 
would  be  long  before  a  shipper  would  feel  warranted  in  subjecting  himself 
to  the  annoyances  that  he  might  suffer  because  of  his  action  in  making 
complaint  against  a  railway  company  with  which  he  is  obliged  to  transact 
business.  Besides,  with  the  burdensome  rate  conditions  which  are  shown 
to  prevail  in  Wisconsin,  it  would  be  manifestly  unjust  to  require  the  public 
to  await  the  action  of  the  commission  upon  individual  complaints.  Such 
a  course  would  amount  practically  to  a  denial  of  all  the  benefits  of  this 
legislation  to  small  shippers  whose  freight  rates  are  relatively  much  more 
burdensome  to  them  than  are  the  larger  freight  bills  to  those  more 
extensively  engaged  in  shipping.  The  amounts  involved  in  the  case 
of  small  shippers  would  be  too  small  to  warrant  the  expense  incident 
to  making  a  formal  complaint  and  appearance  before  the  commission  in 
order  to  secure  redress. 

But  this  is  not  all.  The  great  body  of  the  people  of  Wisconsin  who 
bear  in  the  aggregate  the  principal  burden  of  the  freight  rates,  surely, 
could  not  appear  before  the  commission  to  make  complaint.  Neither 
could  they  state  their  complaint  or  allege  the  measure  of  wrong  imposed 
upon  them  by  the  transportation  companies.  They  have  no  dealing 
directly  with  the  railroads,  and  do  not  pay  freights  to  the  railway  com- 
panies at  all.  They  are,  nevertheless,  the  ones  who  finally  pay  the  largest 
proportion  of  all  the  transportation  charges  which  go  to  swell  the 
enormous  revenues  of  the  railway  companies  in  Wisconsin.  This  they 
pay  as  a  part  of  the  price  when  they  purchase  the  coal,  the  lumber,  and 
merchandise  which  they  must  buy.  True,  the  coal  dealer  and  the  lumber 
dealer  and  the  merchant  pay  the  freight  in  the  first  instance  to  the  rail- 
road, but  they  in  turn  charge  the  freight  to  the  customers  to  whom  they 
sell  the  coal,  the  lumber, 'the  dry  goods,  the  provisions,  and  other  supplies. 
How  shall  the  consumer  obtain  any  relief  against  exorbitant  transpor- 
tation charges  if  the  Railway  Commission  can  only  act  upon  the  complaint 
of  the  individual,  who,  in  reality,  does  not  bear  the  final  burden  ? 

It  must,  therefore,  be  at  once  apparent  that  limiting  the  action  of  the 
commission  to  such  cases  only  as  are  made  the  subject  for  formal  com- 
plaint, would  go  far  to  curtail  the  value  of  the  law,  and  1  would  recom- 
mend that  the  commission  be  authorized  to  investigate  upon  its  own 
motion,  with  respect  to  any  matter  or  anything  concerning  the  efiiciency 
of  the  service,  the  reasonal^leness  of  the  rate,  and  the  impartiality  of  the 
service  as  between  different  individuals  and  different  places. 

It  is,  of  course,  the 'province  of  the  legislature  to  determine  as  to  the 
various  provisions  and  details  of  the  bill ;  but  I  deem  it  both  a  privilege 
and  a  duty  to  make  such  suggestions  as  study  and  reflection  upon  this 
subject  lead  mc  to  believe  would  in  any  manner  aid  in  the  preparation 
and  enactment  of  legislation  ujion  this  very  important  subject. 

'i'he  commission  should  have  authority  to  requiie  the  railway  com- 
panies,  upon    reasonable    notice,   to    furnish   all   the  cars  requisite  to 


THE  STATE  ADMINISTRATION  255 

accommodate  shippers.  Many  people  engaged  in  various  lines  of  busi- 
ness in  Wisconsin  experience  great  hardship  because  they  have  no  appeal 
except  to  the  railroads,  whose  convenience  they  have  to  await  in  the 
matter  of  supplying  cars.  This  is  often  a  serious  loss  to  the  shipper, 
particularly  upon  certain  perishable  classes  of  shipments,  and  in  all 
cases  it  embarrasses  the  shipper's  business  with  respect  to  markets 
and  prices. 

The  railroads  usually  provide  scales  at  terminal  and  division  points 
only,  so  that  the  matter  of  weights  is  entirely  within  their  own  hands  ;  as 
a  result  shippers  are  continually  driven  to  make  claims  for  overcharges 
in  weight.  There  are  to-day  large  numbers  of  shippers  on  every  line  in 
Wisconsin  who  have  claims  of  this  nature  pending  with  the  railway  com- 
panies, to  the  amount  of  many  thousands  of  dollars.  These  claims  drag 
along,  and  require  the  most  persistent  effort  on  the  part  of  shippers,  in 
order  to  make  even  a  partial  recovery.  The  commission  should  be  placed 
in  a  position  to  require  all  reasonable  facilities  for  ascertaining  and  record- 
ing the  weight  of  loaded  cars,  insuring  ample  protection  to  the  interests 
of  all  shippers.  They  should  also  make  reasonable  rules  and  regulations 
for  the  prompt  adjustment  of  all  claims. 

The  commission  should  be  authorized  to  require  reasonably  adequate 
train  service  on  all  lines,  designating,  wherever  the  action  of  the  railway 
company  makes  it  necessary,  the  minimum  number  of  trains  that  shall  run 
at  convenient  hours  for  the  traveling  public  to  reach  centers  of  trade  and 
reasonable  connection  with  the  service  of  other  lines ;  to  provide  proper 
station  accommodations  and  telegraph  service ;  to  require  the  use  of 
automatic  couplers,  air  brakes,  and  other  devices  for  the  protection  of 
employees,  with  penalties  for  nonuse  of  the  same ;  to  make  and  enforce 
reasonable  regulations  respecting  the  protection  of  private  property,  and 
the  proper  drainage  of  lands  affected  by  the  construction  of  roads ;  and 
also  to  make  regulations  respecting  crossings,  interlocking  switches, 
and  other  details  of  railroad  equipment  and  operation. 

Publicity 

Secrecy  is  the  source  of  many  of  the  most  serious  evils  pertaining  to 
railway  management.  If  the  commission  is  clothed  with  power  to  enforce 
entire  publicity,  it  will  rarely  be  necessary  to  employ  its  authority  to  pros- 
ecute. Publicity  should  extend  to  complete  itemized  statements  of  all 
matters  connected  with  the  financial  accounts  of  the  railway  companies' 
business.  The  maintenance  of  a  particular  rate,  established  by  the  com- 
mission, must-depend  upon  the  commission's  knowledge  of  earnings  and 
the  expenses  of  the  road.  A  percentage  of  railway  profits  is  invariably 
concealed  by  the  accounting  system  employed  in  all  railroad  offices.  It 
follows  that  the  authority  of  the  commission  over  railway  accounts  should 
also  extend  to  the  enforcement  of  uniformity  in  keeping  the  same.    The 


256  AMERICAN  STATE  GOVERNMENT 

importance  of  this  matter  has  been  repeatedly  urged  upon  the  attention 
of  Congress  by  the  Interstate  Commerce  Commission  and  through  the 
action  of  the  annual  conventions  of  State  Railway  commissions. 

Publicity  should  extend  to  all  matters  which  may  affect  the  public  in 
any  way,  and  the  railway  companies  should  be  required  to  file  with 
the  commission  copies  of  all  contracts  affecting  public  interests,  made 
by  railroads  with  each  other,  with  shippers  and  passengers,  with  car 
and  equipment  companies,  with  express  and  other  transportation  com- 
panies, with  land  companies,  and  with  every  company  doing  business 
or  shipping  goods  into  or  from  this  state,  or  in  any  way  affecting 
said  shipments. 

The  commission  should  likewise  be  authorized  to  require  a  list  of  all 
reduced  passenger  rates,  passes,  or  mileage  books  issued  free  or  for  any 
consideration  other  than  the  full  value  of  the  same  in  money,  which  are, 
or  may  be  used  within  the  state,  whether  to  employees  or  others,  together 
with  the  names  of  the  recipients  and  the  reasons  for  issuing  such  reduced 
rates,  passes,  or  mileage  books.  The  commission  should  be  empowered 
to  require  the  usual  traffic  statistics,  and  full  and  accurate  statistics  of 
wages  and  of  hours  of  continuous  service  of  employees,  including  those 
of  sleeping-car  and  express  companies,  telegraph  operators,  and  all  other 
persons  employed  by  the  railway  companies,  or  by  companies  engaged 
in  transportation  in  connection  therewith. 

Provision  should  likewise  be  made  for  the  publication  of  reports  by 
the  commissioners  embracing  all  of  the  foregoing  information  for  the 
benefit  of  the  general  public. 

Protection  against  Overcapitalization 

The  wrongs  which  may  be  inflicted  upon  the  public  through  over- 
capitalization are  so  obvious  that  it  seems  scarcely  necessary  to  discuss 
the  importance  of  incorporating  in  this  law  a  strong  provision  making  it 
the  duty  of  the  commission  to  ascertain  the  value  of  all  steam  and  electric 
railways  within  the  state,  and  making  it  unlawful  for  any  steam  or  elec- 
tric railway  company  located  in  Wisconsin  to  issue  any  bonds  or  other 
evidences  of  debt,  or  to  issue  stocks  and  shares,  or  to  execute  leases  and 
mortgages,  without  first  ol)taining  an  order  from  the  commission  author- 
izing such  action.  Could  this  have  been  done  earlier  in  the  history  of 
railway  building  in  Wisconsin,  the  people  would  not  now  be  taxed  so 
heavily  on  all  transportation  in  order  to  pay  interest  and  dividends  upon 
an  overcapitalization  of  all  our  roads.  It  is  certainly  wise  to  provide,  with 
all  possible  speed,  against  any  further  overcapitalization  of  either  steam 
or  electric  railroads  already  within  the  state,  or  any  overcapitalization  of 
such  other  lines  as  may  from  time  to  time  be  constructed.  The  history 
of  railroad  lawmaking  affords  but  few  examples  of  more  vicious  legisla- 
tion than  Chapter  nj8  of  the  laws  of  Wisconsin  of  1899,  by  the  provisions 


THE  STATE  ADMINISTRATION  257 

of  which  any  corporation  in  the  state  can  purchase  the  property  and 
rights  of  another  by  mortgage,  bankruptcy,  or  judicial  sale,  can  reorganize 
the  purchased  corporation,  and  put  in  its  property  at  any  price,  or  as 
representing  any  number  of  shares  it  may  see  fit,  without  reference  to 
the  value  of  the  property  or  its  cost,  thus  affording  a  great  opportunity 
and  inducement  for  a  profitable  and  iniquitous  business  in  stock  watering. 
Provided  that  it  shall  not  be  a  competing  or  parallel  railroad,  and  that  it 
shall  intersect  with  some  line  of  the  purchasing  railroad,  or  such  as  it  is 
authorized  to  build,  the  law  authorizes  any  railroad  organized  under  the 
laws  of  this  state  to  issue  the  capital  stock  and  bonds  of  its  own  com- 
pany for  any  amount  it  may  see  fit,  without  reference  to  the  purchase 
price  or  the  value,  thus  giving  an  unlimited  power  to  water  stock  and 
inflate  capital,  based  upon  nothing  of  a  substantial  character  or  value. 

Commission  vested  with  Authority  to  make  Co.mmoditv  Rate 

Large  shippers  in  \^'isconsin  have  heretofore  professed  to  entertain 
great  fear  that  such  legislation  as  is  here  proposed  would  interfere  with 
rates  upon  commodities  important  in  their  industrial  enterprises.  There 
is  not  the  slightest  ground  for  such  apprehension  on  their  part.  Nothing 
can  come  within  the  scope  of  legislation  which  the  state  has  the  power  to 
pass,  except  as  it  pertains  to  state  commerce.  That  portion  of  the  busi- 
ness conducted  by  large  shippers  in  moving  their  products  to  distant 
markets  constitutes  interstate  commerce.  With  such  shipments,  or  with 
those  from  other  states  by  rail  into  this  state,  a  state  commission  cannot 
interfere.  A  state  commission  would  be  able  to  control  rates  with  respect 
to  such  of  these  commodities  or  shipments  as  are  made  within  the  state. 
Upon  principle  and  authority  such  commission  can  secure  for  a  manu- 
facturer as  a  right,  not  as  a  favor,  from  the  railroad,  as  low  a  commodity 
rate  as  the  railroad  can  make  of  its  own  motion.  The  commission  should 
be  vested  with  authority  not  only  to  make  commodity  rates,  but  to  vary 
the  rate  as  the  requirements  of  any  situation  demand,  assigning  upon 
their  records  their  reasons  for  any  special  exception  made.  The  com- 
mission would  then  be  able  to  furnish  every  possible  aid  and  support 
for  the  maintenance  and  further  development  of  such  industries.  The 
state  can  lawfully  authorize  a  commission  to  make  rates  as  low  as  it  is 
possible  for  the  railway  company  to  furnish  them  to  shippers.  If  a  rail- 
way company  is  extending  any  rate  as  a  commodity  rate  to  any  manu- 
facturing enterprise  in  Wisconsin  to-day,  it  would  scarcely  be  able  to 
interpose  an  objection  to  such  rate  when  it  was  fixed  by  authority  of  a 
state  commission  ;  moreover,  whenever  it  was  established,  or  was  evi- 
dent that  any  such  commodity  rate  could  reasonably  be  made  lower,  a 
state  commission  should  at  once  lower  the  same. 


258  AMERICAN  STATE  GOVERNMENT 

Railroad  Rate-Making 

A  plausible  objection  which  is  always  urged  by  the  railroads  against 
any  "  interference  "  with  their  making  rates  is,  that  rate-making  involves 
a  technical  knowledge  only  possessed  by  those  engaged  in  the  trans- 
portation business.  1  am  free  to  admit  that  rate-making  requires  tech- 
nical and  expert  knowledge.  It  must  be  based  upon  definite  and  detailed 
information  with  respect  to  the  value  of  railroad  property,  its  cost  of 
maintenance  and  operation,  and  the  expense  attendant  upon  handling 
and  transporting  the  different  classes  and  commodities  of  freight. 

The  railroads  secure  the  services  of  men  competent  to  discharge  these 
duties.  The  state  may  likewise  secure  the  services  of  men  equally  com- 
petent. In  view  of  the  great  public  interest,  which  goes  vastly  beyond 
the  amount  of  money  paid  to  the  railroad  companies  annually  for  trans- 
portation, great  as  that  sum  is  in  the  aggregate,  it  is  less  important  than 
the  administration  of  justice  in  securing  an  impartial  service  for  all  sec- 
tions of  the  state,  all  lines  of  business,  and  each  individual. 

It  is  not  possible  to  overstate  the  importance  of  the  provisions  of 
this  law ;  but,  however  perfect  the  law,  the  state  will  fail  utterly  in 
its  undertaking  unless  the  commission  is  composed  of  men  of  high 
character  and  ability.  Party  preference  or  prejudices  should,  in  no 
way,  influence  the  selection  of  members  of  this  commission.  They 
should  be  men  of  the  highest  integrity,  of  marked  industry,  and  they 
should  possess  special  fitness  and  power  for  the  important  service 
demanded  of  them. 

There  is  no  other  official  in  state  government  who  will  have  such 
enormous  interests  with  which  to  deal  as  will  the  members  of  this  com- 
mission ;  nowhere  else  will  the  pressure  for  special  favor  be  so  great;  and 
nowhere  else  will  the  effort  to  control  the  election  of  the  officials,  and 
thereby  to  control  their  official  action,  be  so  persistent  and  resourceful. 
Railway  commissions  in  some  states  have  fallen  under  the  influence  of 
the  very  railroads  they  were  intended  to  regulate,  and  in  some  cases 
have  only  served  to  fasten  more  securely  on  the  state  the  power  of  these 
corporations.  The  "  regulated  have  become  the  regulators."  This  may 
always  be  traced  to  that  falling-off  of  jjublic  interest  following  the  stren- 
uous efforts  required  to  secure  the  enactment  of  such  a  law.  The  rail- 
roads count  upon  this,  and  whenever  public  attention  relaxes  with  respect 
to  these  important  officials,  the  corporations,  ever  on  the  alert,  are  in- 
genuous in  having  new  issues  brought  forward  to  obscure  and  confuse 
public  attention,  and  by  means  of  their  manipulation  and  unlimited 
resources  they  succeed  in  getting  men  of  their  own  choice  upon  the 
commission.  This  is  no  reason  for  abandoning  the  effort  to  abolish  exist- 
ing railway  discriminations  and  abuses,  but  it  is  a  reason  for  giving  most 
serious  ccjnsidcration  to  the  method  of  selecting  the  members  of  the 
commission.    Weakness  at  this  point  will,  in  the  end,  be  disastrous,  for 


THE  STATE  ADMINISTRATION 


259 


it  will  be  at  this  point  that  the  opposition  will  concentrate  and  direct  its 
well-trained  forces  of  attack. 

It  must  always  be  borne  in  mind  that  the  contest  between  the  state 
and  corporate  power  is  a  lasting  one.  Under  a  republican  form  of  gov- 
ernment the  people  must  struggle  to  secure  legislation,  guard  it  jealously 
when  secured,  and  be  ever  vigilant  in  the  selection  of  their  representa- 
tives for  the  administration  of  the  law.  It  may  be  safely  assumed  that 
the  railway  corporations  will  continue  their  opposition  to  this  legislation. 
Any  effort  to  limit  their  control  of  commerce  will  be  resisted  in  this  state 
as  it  has  been  resisted  in  other  states  and  in  the  national  Congress.  The 
history  of  every  struggle  to  place  upon  the  statute  books  like  legislation 
has  been  the  same.  So  long  as  it  can  be  defeated  they  employ  all  of 
their  power  to  that  end.  When  the  public  interest  becomes  so  awakened 
and  it  is  clearly  manifest  that  such  legislation  will  be  enacted,  they  then 
put  forth  all  of  their  skill  to  incorporate  provisions  in  the  statute  which 
will  weaken  or  destroy  its  efficiency.  For  ten  years,  session  after  session, 
railway  corporations  prevented  the  adoption  of  the  Interstate  Commerce 
Law  in  Congress.  When  in  1887  they  saw  it  must  pass,  they  were  ready 
with  devices  to  cripple  it  in  operation,  render  weak  and  ambiguous  its 
terms,  by  preparing  the  way  long  in  advance  for  court  decisions  divest- 
ing the  commission  of  all  control  over  interstate  transportation.  With 
respect  to  this,  as  well  as  to  all  other  measures  in  which  the  railway  cor- 
porations are  in  any  manner  interested,  they  have  a  right  to  be  heard  by 
counsel  and  to  have  their  arguments  and  objections  carefully  considered. 
But  it  must  always  be  remembered  that  their  attitude  throughout  is  one 
of  hostility  to  this  legislation,  and  that  if  their  relation  to  the  law  after  it 
is  enacted  is  to  be  judged  by  their  attitude  toward  the  Interstate  Com- 
merce Law,  it  will  be  one  of  continued  effort  to  destroy  its  efficiency 
and  nullify  its  provisions. 

Whatever  differences  of  opinion  may  be  found  among  supporters  of  a 
measure  to  regulate  railway  services  and  rates,  as  to  whether  the  commis- 
sion should  be  elective  or  appointive,  you  will,  I  apprehend,  find  no 
division  among  the  opponents  of  such  legislation.  One  and  all  they  are 
quite  certain  to  be  unitedly  in  favor  of  an  elective  commission.  While 
they  will  oppose  the  creation  of  any  commission  whatever  so  long  as 
such  opposition  can  be  successfully  made,  and  while  they  will  oppose 
every  provision  to  strengthen  the  hands  of  such  commission,  they  will 
join  with  great  unanimity  for  the  election  of  the  commission  and  in  favor 
of  the  shortest  possible  tenure  of  office.  I  have  no  doubt  that  with  the 
general  public  interest  in  this  question  which  prevails  at  this  time  in  Wis- 
consin, there  would  be  little  difficulty  in  securing  in  any  general  election, 
where  there  would  be  a  full  expression  of  the  will  of  the  people,  a  com- 
mission favorable  to  a  thoroughgoing  administration  of  the  law,  and  I 
sincerely  believe  that  a  commission  so  chosen,  if  continued  in  office, 
would  ultimately  become  well  equipped  to  discharge  its  duties.    But  the 


26o  AMERICAN  STATE  GOVERNMENT 

test  of  the  elective  system  of  choosing  commissions  comes  later,  more 
especially  if  such  commission  is  fairly  efficient  in  the  discharge  of  the 
duties  devolving  upon  it. 

It  is  after  rates  have  been  in  a  measure  satisfactorily  adjusted,  and 
the  people  in  a  measure  satisfied,  that  their  watchfulness  abates.  Their 
grievances  are  no  longer  so  acute,  their  interests  may  be  diverted  to  other 
questions  of  public  concern,  and,  taken  off  guard  by  the  tireless  and 
vigilant  allies  of  the  railroads,  they  awaken  finally  to  a  realization  that 
the  personnel  of  the  commission  has  been  changed,  that  rates  have 
ceased  to  tend  downward,  as  they  steadily  should,  with  the  increase  of 
the  tonnage  and  the  improvement  of  the  service,  and  that,  on  the  con- 
trar)^  rates  have  begun  to  advance  and  the  old  abuses  again  to  assert 
themselves. 

In  the  contest  which  would  follow  to  restore  again  the  commission 
to  its  original  character  and  efficiency,  difficulties  would  be  encountered 
which  are  always  possible  in  choosing  between  a  large  number  of  can- 
didates where  each  attracts  some  following  on  personal  consideration, 
independent  of  his  qualifications,  technical  knowledge,  and  special  merit. 
The  ability  of  corporate  wealth  and  power  to  control  in  the  selection  of 
a  commission  could  scarcely  be  doubted  under  the  caucus  and  conven- 
tion systems.  The  adoption  of  such  a  primary  law  as  we  now  have  in 
Wisconsin  would  greatly  strengthen  the  confidence  of  the  people  suc- 
cessfully to  meet  the  corporations  in  such  a  contest. 

The  encroachment  of  the  great  railway  systems,  allied  with  indus- 
trial trusts  and  combinations,  upon  democracy,  is  a  constant  menace  to 
whatever  degree  we  may  perfect  the  laws  providing  for  the  machinery 
of  popular  government.  Every  additional  temptation  for  these  great 
organizations  as  a  system  to  take  part  in  the  elections,  should  be  re- 
moved.   Surely  it  is  the  part  of  wisdom  to  add  none  unnecessarily. 

Upon  this  point  1  beg  to  invite  your  attention  to  the  views  of  Pro- 
fessor Frank  H.  Dixon,  head  of  department  of  economics,  Dartmouth 
College,  in  his  able  work  on  "  State  Railroad  Control,"  based  upon  a 
critical  study  of  the  history  and  operation  of  the  Iowa  law  adopted 
in  1888: 

This  law  making  commissioners  elective  was  passed  in  the  spring  of  1 888. 
Before  that  time  the  commissioners  had  been  appointed  by  the  governor,  and 
their  selection  had  depended  in  no  degree  ujjon  their  pohtical  afliliations. 
The  opponents  of  the  new  order  predicted  that  tlie  change  would  furnish  the 
railroads  the  opportunity  which  they  sought  of  going  into  politics,  and  so  it 
unfortunately  proved.  It  has  resulted  in  more  than  one  campaign  being  fought 
out  by  the  railroad  and  antirailroad  forces,  regardless  of  the  connection  of 
the  candidates  with  one  or  the  other  of  the  great  national  pardes.  The  com- 
missioner who,  by  his  ])ui)lic  acts,  seemed  to  favor  the  (".ranger  sentiment  as 
opposed  to  the  railroads  would  be  obliged,  if  a  candidate  for  reelection,  to 
face  the  combined  forces  of  the  opposition,  ably  directed  from  railroad  head- 
quarters.   At  one  election  handbills  and  telegrams  were  sent  out  along  the 


THE  STATE  ADMINISTRATION  261 

lines  of  roads  directing  employees  to  vote  for  a  certain  man  who  was  believed 
to  be  friendly  to  railroad  interests.  The  grain  men  and  large  shippers  were 
notified  to  join  the  movement.  The  opposition  was  strengthened  through  the 
multiplication  of  railroad  employees'  clubs,  formed  for  no  other  purpose  than 
to  influence  railroad  legislation. 

Experience  has  proven  conclusively  that  the  election  of  commissioners  by 
popular  vote  is  dangerous  in  furnishing  inducement  for  the  powerful  corpora- 
tions to  make  themselves  felt  politically.  An  appointment  of  commissioners 
by  the  governor,  with  the  consent  of  the  senate,  or  the  executive  council, 
which  was  the  method  in  vogue  at  first,  should  be  restored.  When  this  has 
been  done,  a  great  step  will  have  been  taken  toward  promoting  a  feeling  of 
harmony  between  shippers  and  carriers,  —  a  spirit  indispensable  to  the  satis- 
factory solution  of  the  railroad  question. 

There  is  another  phase  of  this  branch  of  the  subject  which  is  worth 
your  careful  consideration.  The  thought  must  ever  be  kept  in  mind,  in 
a  law  creating  a  railroad  commission  with  power  to  regulate  services 
and  rates,  that  the  most  important  problem  to  be  dealt  with  is  the  char- 
acter and  ability  of  the  men  who  will  be  intrusted  with  this  great 
responsibility.  The  work  of  the  commission  in  fixing  rates  will  stand  or 
fall  as  it  meets  the  severe  tests  applied  in  a  review  of  its  proceedings 
by  the  courts. 

Rates  established,  either  upon  the  initiative  of  the  commission  or 
upon  complaints  filed  with  it,  cannot  be  sustained  by  the  courts  except 
such  rates  are  fair  not  only  to  the  public,  but  just  and  reasonable  to  the 
railroads  as  well.  To  determine  this  latter  question  requires  a  technical 
and  expert  knowledge  of  traffic  conditions  and  of  the  cost  of  railway 
construction,  maintenance,  and  transportation,  in  detail.  In  order  that 
any  rate  established  may  be  sustained,  the  commission  must  be  able  to 
meet  and  answer  the  ablest  traffic  experts  in  the  employ  of  the  great 
railway  companies.  They  should  be  able  to  meet  them,  in  so  far  as 
possible,  upon  equal  terms.  Railway  traffic  managers  are,  because  of 
their  ability  and  fitness,  among  the  highest  paid  of  all  the  railway 
company  officials.  A  contest  between  political  parties,  where  partisan 
feeling  runs  high  and  personal  friendships  and  popular  elements  in 
character  count  in  the  determination  of  the  result,  does  not  afford  the 
best  conditions  for  judging  of  those  purely  technical  qualifications  and 
of  that  mental  endowment  and  experience  which  specially  fits  for  work 
of  the  character  required  of  such  a  commission. 

On  the  other  hand,  if  the  office  is  made  appointive,  there  will  be 
every  opportunity  for  the  appointing  power  to  make  selection  from  the 
widest  possible  field,  having  ample  time  for  investigation  of  the  can- 
didate with  respect  to  his  antecedents,  to  the  elements  in  his  character, 
and  to  his  ability,  experience,  and  expert  knowledge.  The  selection 
would  be  made  full  in  the  eye  of  the  public,  the  appointing  power 
having  responsibility  for  his  acts  and  knowing  with  a  certainty  that 
such  appointment  would  not  be  confirmed  unless  it  met  the  approving 


262  AMERICAN  STATE  GOVERNMENT 

judgment  of  the  legislature.  For  I  believe  that  these  positions  upon  the 
commission  are  so  profoundly  important  that  if  appointive,  an  additional 
check  might  well  be  provided  to  those  usually  made,  and  I  would  recom- 
mend that  such  appointment  be  subject  to  confirmation,  not  only  by  the 
Senate  but  by  the  Assembly  as  well,  requiring  the  concurrent  action  of 
both  branches  of  the  legislature  to  confirm  the  same. 

STATE  CONSERVATION   OF  NATURAL   RESOURCES' 

Justice  Holmes  delivered  the  opinion  of  the  court. 

This  is  an  information  alleging  that  the  defendant  (the  plaintiff  in  error), 
under  a  contract  with  the  city  of  Bayonne  in  New  Jersey,  has  laid  mains 
in  that  city  for  the  purpose  of  carrying  water  to  Staten  Island  in  the 
state  of  New  Vork.  By  other  contracts  it  is  to  get  the  water  from  the 
Passaic  River  at  Little  Falls,  where  the  East  Jersey  Water  Company  has 
a  large  plant  by  which  the  water  is  withdrawn.  On  May  ii,  1905,  the 
state  of  New  Jersey,  reciting  the  need  of  preserving  the  fresh  water  of 
the  state  for  the  health  and  prosperity  of  the  citizens,  enacted  that,  "  It 
shall  be  unlawful  for  any  person  or  corporation  to  transport  or  carry, 
through  pipes,  conduits,  ditches,  or  canals,  the  waters  of  any  fresh-water 
lake,  pond,  brook,  creek,  river,  or  stream  of  this  state  into  any  other 
state,  for  use  therein."  By  a  second  section  a  proceeding  like  the  pres- 
ent was  authorized  in  order  to  enforce  the  act.  (Laws  of  1905,  Chapter 
238,  p.  461.)  After  the  passage  of  this  statute  the  defendant  made  a 
contract  with  the  city  of  New  York  to  furnish  a  supply  of  water  adequate 
for  the  borough  of  Richmond,  and  of  not  less  than  three  million  gallons 
a  day.  Thereupon  this  information  was  brought,  praying  that,  pursuant 
to  the  above  act  and  otherwise,  the  defendant  might  be  enjoined  from 
carrying  the  waters  of  the  Passaic  River  out  of  the  state.  There  are  alle- 
gations as  to  the  amount  of  water  and  the  probable  future  demand  upon 
which  the  parties  are  not  wholly  agreed,  but  the  essential  facts  are  not 
denied.  The  defendant  sets  up  that  the  statute,  if  applicable  to  it,  is  con- 
trary to  the  Constitution  of  the  United  States,  that  it  impairs  the  obliga- 
tion of  contracts,  takes  property  without  due  process  of  law,  interferes 
with  C(jmmerce  between  New  Jersey  and  New  York,  denies  the  privileges 
of  citizens  of  New  Jersey  to  citizens  of  other  states,  and  denies  to  them 
the  equal  protection  of  the  laws.  An  injunction  was  issued  by  the  chan- 
cellor (70  N.  J.  Eq.  525),  the  decree  was  affirmed  by  the  court  of  errors 
and  appeals  (70  N.  J.  I'^q.  695),  and  ihe  case  then  was  brought  here. 

'J 'he  courts  below  assumed  or  decided,  and  we  shall  assume,  that  the 
defendant  represents  the  rights  of  a  ri]xu-ian  proprietor,  and,  on  the  other 
hand,  that  it  represents  no  special  chartered  powers  that  give  it  greater 
rights  than  those.    On  these  assumptions  the  court  of  errors  and  appeals 

1  From  Hudson  County  Water  Company  -'.f.  McCartcr,  Altorncv*  itnoral  of  tlic  state  of 
New  Jersey,  209  U.  S.  349.    Decided  April  6,  1908.    Opinion  of  Justice  Holmes. 


THE  STATE  ADMINISTRATION  263 

pointed  out  that  a  riparian  proprietor  has  no  right  to  divert  waters  for 
more  than  a  reasonable  distance  from  the  body  of  the  stream  or  for  other 
than  the  well-known  ordinary  uses,  and  that  for  any  purpose  anywhere 
he  is  narrowly  limited  in  amount.  It  went  on  to  infer  that  his  only  right 
in  the  body  of  the  stream  is  to  have  the  flow  continue,  and  that  there  is 
a  residuum  of  public  ownership  in  the  state.  It  reenforced  the  state's 
rights  by  the  state's  title  to  the  bed  of  the  stream  where  flowed  by  the 
tide,  and  concluded  from  the  foregoing  and  other  considerations  that,  as 
against  the  rights  of  riparian  owners  merely  as  such,  the  state  was  war- 
ranted in  prohibiting  the  acquisition  of  the  title  to  water  on  a  larger  scale. 

We  will  not  say  that  the  considerations  that  we  have  stated  do  not 
warrant  the  conclusion  reached ;  and  we  shall  not  attempt  to  revise  the 
opinion  of  the  local  court  upon  the  local  law,  if,  for  the  purpose  of  deci- 
sion, we  accept  the  argument  of  the  plaintiff  in  error  that  it  is  open  to 
revision  when  constitutional  rights  are  set  up.  Neither  shall  we  consider 
whether  such  a  statute  as  the  one  before  us  might  not  be  upheld,  even 
if  the  lower  riparian  proprietors  collectively  were  the  absolute  owners  of 
the  stream,  on  the  ground  that  it  authorized  a  suit  by  the  state  in  their 
interest  where  it  does  not  appear  that  they  all  have  released  their  rights 
(see  Kansas  vs.  Colorado,  185  U.S.  125,  142).  But  we  prefer  to  put 
the  authorit)^  which  cannot  be  denied  to  the  state  upon  a  broader  ground 
than  that  which  was  emphasized  below,  since  in  our  opinion  it  is  inde- 
pendent of  the  more  or  less  attenuated  residuum  of  title  that  the  state 
may  be  said  to  possess. 

All  rights  tend  to  declare  themselves  absolute  to  their  logical  extreme. 
Yet  all,  in  fact,  are  limited  by  the  neighborhood  of  principles  of  policy 
which  are  other  than  those  on  which  the  particular  right  is  founded,  and 
which  become  strong  enough  to  hold  their  own  when  a  certain  point  is 
reached.  The  limits  set  to  property  by  other  public  interests  present 
themselves  as  a  branch  of  what  is  called  the  police  power  of  the  state. 
The  boundar}^  at  which  the  conflicting  interests  balance  cannot  be  deter- 
mined by  any  general  formula  in  advance,  but  points  in  the  line,  or  help- 
ing to  establish  it,  are  fixed  by  'decisions  that  this  or  that  concrete  case 
falls  on  the  nearer  or  farther  side.  For  instance,  the  police  power  may 
limit  the  height  of  buildings,  in  a  city,  without  compensation.  To  that 
extent  it  cuts  down  what  other\vise  would  be  the  rights  of  property.  But 
if  it  should  attempt  to  limit  the  height  so  far  as  to  make  an  ordinar}' 
building  lot  wholly  useless,  the  rights  of  propert}-  would  prevail  over  the 
other  public  interest  and  the  police  power  would  fail.  To  set  such  a  limit 
would  need  compensation  and  the  power  of  eminent  domain. 

It  sometimes  is  difficult  to  fix  boundar)-  stones  between  the  private 
right  of  property  and  the  police  power  when,  as  in  the  case  at  bar,  we 
know  of  few  decisions  that  are  very  much  in  point.  But  it  is  recognized 
that  the  state  as  quasi-sovereign  and  representative  of  the  interests  of  the 
public  has  a  standing  in  court  to  protect  the  atmosphere,  the  water,  and 


264  AMERICAN  STATE  GOVERNMENT 

the  forests  within  its  territory,  irrespective  of  the  assent  or  dissent  of 
the  private  owners  of  the  land  most  immediately  concerned  (Kansas  vs. 
Colorado,  18511.8.125,141,142;  S.  C,  206  U.  S.  46,  99  ;  Georgia  z/j. 
Tennessee  Copper  Company,  206  U.  S.  230,  238).  What  it  may  protect 
by  suit  in  this  court  from  interference  in  the  name  of  property  outside  of 
the  state's  jurisdiction,  one  would  think  that  it  could  protect  by  statute 
from  interference  in  the  same  name  within.  On  this  principle  of  public 
interest  and  the  police  power,  and  not  merely  as  the  inheritor  of  a  royal 
prerogative,  the  state  may  make  laws  for  the  preservation  of  game,  which 
seems  a  stronger  case  (Geer  vs.  Connecticut,  161  U.  S.  519,  534). 

The  problems  of  irrigation  have  no  place  here.  Leaving  them  on  one 
side,  it  appears  to  us  that  few  public  interests  are  more  obvious,  indis- 
putable, and  independent  of  particular  theory  than  the  interest  of  the 
public  of  a  state  to  maintain  the  rivers  that  are  wholly  within  it  substan- 
tially undiminished,  except  by  such  drafts  upon  them  as  the  guardian  of 
the  public  welfare  may  permit  for  the  purpose  of  turning  them  to  a  more 
perfect  use.  This  public  interest  is  omnipresent  wherever  there  is  a  state, 
and  grows  more  pressing  as  population  grows.  It  is  fundamental,  and 
we  are  of  opinion  that  the  private  property  of  riparian  proprietors  can- 
not be  supposed  to  have  deeper  roots.  Whether  it  be  said  that  such  an 
interest  justifies  the  cutting  down  by  statute,  without  compensation,  in 
the  exercise  of  the  police  power,  of  what  otherwise  would  be  private  rights 
of  property,  or  that  apart  from  statute  those  rights  do  not  go  to  the  height 
of  what  the  defendant  seeks  to  do,  the  result  is  the  same.  But  we  agree 
with  the  New  Jersey  courts,  and  think  it  quite  beyond  any  rational  view 
of  riparian  rights  that  an  agreement,  of  no  matter  what  private  owners, 
could  sanction  the  diversion  of  an  important  stream  outside  the  bound- 
aries of  the  state  in  which  it  flows.  The  private  right  to  appropriate  is 
subject  not  only  to  the  rights  of  lower  owners,  but  to  the  initial  limitation 
that  it  may  not  substantially  diminish  one  of  the  great  foundations  of 
public  welfare  and  health. 

We  are  of  opinion,  further,  that  the  constitutional  power  of  the  state 
to  insist  that  its  natural  advantages  shall  remain  unimpaired  by  its  citizens 
is  not  dependent  upon  any  nice  estimate  of  the  extent  of  present  use,  or 
speculation  as  to  future  needs.  The  legal  conception  of  the  necessary  is 
apt  to  be  confined  to  somewhat  rudimentary  wants,  and  there  arc  bene- 
fits from  a  great  river  that  might  escape  a  lawyer's  view.  But  the  state 
is  not  required  to  submit  even  to  an  aesthetic  analysis.  Any  analysis  may 
be  inadequate.  It  finds  itself  in  possession  of  what  all  admit  to  be  a  great 
public  good,  and  what  it  has  it  may  keep  and  give  no  one  a  reason 
for  its  will. 

The  defense  under  the  fourteenth  amendnunt  is  disposed  of  by  what 
we  have  said.  That  under  Article  I,  Section  10,  needs  but  a  few  words 
more.  One  whose  rights,  such  as  they  are,  are  subject  to  state  restriction 
cannot  remove  them  from  the  power  of  the  state  by  making  a  contract 


THE  STATE  ADMINISTRATION  265 

about  them.  The  contract  will  carry  with  it  the  infirmity  of  the  subject 
matter  (Knoxville  Water  Company  vs.  Knoxville,  189  U.  S.  434,  438; 
Manigault  vs.  Springs,  199  U.  S.  473,  480).  But  the  contract  the  execu- 
tion of  which  is  sought  to  be  prevented  here  was  illegal  when  it  was  made. 

The  other  defenses  also  may  receive  short  answers.  A  man  cannot 
acquire  a  right  to  property  by  his  desire  to  use  it  in  commerce  among 
the  states  ;  neither  can  he  enlarge  his  otherwise  limited  and  qualified  right 
to  the  same  end.  The  case  is  covered  in  this  respect  by  Geer  vs.  Con- 
necticut, 161  U.  S.  519,  and  the  same  decision  disposes  of  the  argument 
that  the  New  Jersey  law  denies  equal  privileges  to  the  citizens  of  New 
York.  It  constantly  is  necessary  to  reconcile  and  to  adjust  different  con- 
stitutional principles,  each  of  which  would  be  entitled  to  possession  of  the 
disputed  ground  but  for  the  presence  of  the  others,  as  we  already  have 
said  that  it  is  necessary  to  reconcile  and  to  adjust  different  principles  of 
the  common  law  (see  Asbell  vs.  Kansas,  ante,  p.  251).  The  right  to 
receive  water  from  a  river  through  pipes  is  subject  to  territorial  limits  by 
nature,  and  those  limits  may  be  fixed  by  the  state  within  which  the  river 
flows,  even  if  they  are  made  to  coincide  with  the  state  line.  Within  the 
boundary  citizens  of  New  York  are  as  free  to  purchase  as  citizens  of 
New  Jersey.  But  this  question  does  not  concern  the  defendant,  which  is 
a  New  Jersey  corporation.  There  is  nothing  else  that  needs  mention. 
We  are  of  opinion  that  the  decision  of  the  court  of  errors  and  appeals 
was  right.  [JDecree  affirmed] 

Mr.  Justice  McKenna  dissents. 

NATURAL  RESOURCES  AS  STATE  PROPERTY  ^ 

State  of  Maine 
In  Senate,  March  27,  1907 

Ordered :  The  justices  of  the  supreme  judicial  court  are  hereby  re- 
quested to  give  to  the  Senate,  according  to  the  provisions  of  the  consti- 
tution in  this  behalf,  their  opinion  on  the  following  questions,  to  wit : 

In  order  to  promote  the  common  welfare  of  the  people  of  Maine  by 
preventing  or  diminishing  injurious  droughts  and  freshets,  and  by  pro- 
tecting, preserving,  and  maintaining  the  natural  water  supply  of  the 
springs,  streams,  ponds,  and  lakes,  and  of  the  land,  and  by  preventing 
or  diminishing  injurious  erosion  of  the  land  and  the  filling  up  of  the 
rivers,  ponds,  and  lakes,  and  as  an  eflficient  means  necessary  to  this  end, 
has  the  legislature  power  under  the  constitution  : 

I .  By  public  general  law  to  regulate  or  restrict  the  cutting  or  destruc- 
tion of  trees  growing  on  wild  or  uncultivated  land,  by  the  owner 
thereof,  without  compensation  therefor  to  such  owner ; 

1  Questions  submitted  by  the  Senate  of  the  state  of  Maine  to  the  justices  of  the  supreme 
judicial  court  of  Maine,  March  27,  1907,  with  the  answers  of  the  justices  thereon  (103 
Maine,  506). 


266  AMERICAN  STATE  GOVERNMENT 

2.  To  prohibit,  restrict,  or  regulate  the  wanton,  wasteful,  or  unneces- 
sary cutting  or  destruction  of  small  trees  growing  on  any  wild  or  uncul- 
tivated land,  by  the  owner  thereof,  without  compensation  therefor  to 
such  owner,  in  case  such  small  trees  are  of  equal  or  greater  actual  value 
standing  and  remaining  for  their  future  growth  than  for  immediate  cut- 
ting, and  such  trees  are  not  intended  or  sought  to  be  cut  for  the  purpose 
of  clearing  and  improving  such  land  for  use  or  occupation  in  agriculture, 
mining,  quarrying,  manufacturing,  or  business,  or  for  pleasure  purposes, 
or  for  a  building  site  ;  or 

3.  In  such  manner  to  regulate  or  restrict  the  cutting  or  destruction 
of  trees  growing  on  wild  or  uncultivated  lands,  by  the  owners  thereof, 
as  to  preserve  or  enhance  the  value  of  such  lands  and  trees  thereon 
and  protect  and  promote  the  interests  of  such  owners  and  the  common 
welfare  of  the  people  ? 

4.  Is  such  regulation  of  the  control,  management,  or  use  of  private 
property  a  taking  thereof  for  public  uses  for  which  compensation  must 
be  made  ? 

In  Senate  Chamber,  March  27,  1907. 

Read  and  passed. 

F.  G.  Farrington,  Secretary 

To  the  Senate  of  Maine : 

The  undersigned  justices,  in  obedience  to  the  requirement  of  the 
constitution,  severally  give  the  following  as  their  advisory  opinion  upon 
the  questions  of  law  submitted  to  the  justices  of  the  supreme  judicial 
court  by  the  Senate  order  of  March  27,  1907. 

We  find  that  the  legislature  has,  by  the  constitution,  "  full  power  to 
make  and  establish  all  reasonable  laws  and  regulations  for  the  defense 
and  benefit  of  the  people  of  this  state,  not  repugnant  to  this  constitu-' 
tion  nor  that  of  the  United  States  "  (Const,  of  Maine,  Article  IV,  Part 
III,  Section  i).  It  is  for  the  legislature  to  determine  from  time  to  time 
the  occasion  and  what  laws  and  regulations  arc  necessary  or  expedient 
for  the  defense  and  benefit  of  the  people ;  and  however  inconvenienced, 
restricted,  or  even  damaged  particular  persons  and  corporations  may 
be,  such  general  laws  and  regulations  are  to  be  held  valid  unless  there 
can  be  pointed  out  some  provision  in  the  state  or  l-nited  States  Consti- 
tution which  clearly  proiiibiis  them.  Tliese  we  understand  to  be  uni- 
versally accepted  principles  of  constitutional  law. 

As  to  the  proposed  laws  and  regulations  named  in  the  Senate  order, 
the  only  provision  of  the  United  States  Constitution  having  any  possible 
application  to  such  legislation  by  a  state  would  seem  to  be  that  in  the 
fourteenth  amendment.  As  to  that  provision,  we  think  it  sufficient  to 
quote  the  language  of  the  llnited  States  Supreme  Court  in  liarbier  71s. 
Connolly,  113  U.  S.  27,  where,  speaking  of  the  fourteenth  amendment, 
the  court  said : 


THE  STATE  ADMINISTRATION  267 

But  neither  the  amendment,  broad  and  comprehensive  as  it  is,  nor  any  other 
amendment,  was  designed  to  interfere  with  the  power  of  a  state,  sometimes 
termed  its  "  police  power,"  to  prescribe  regulations  to  promote  the  health, 
peace,  morals,  education,  and  good  order  of  its  people,  and  to  legislate  so  as 
to  increase  the  industries  of  the  state,  develop  its  resources,  and  add  to  its 
wealth  and  prosperity. 

It  may  be  added  that  the  proposed  lav^rs  and  regulations  would  not  dis- 
criminate between  persons  or  corporations,  but  only  between  things  and 
situations,  with  a  classification  not  merely  arbitrary  but  based  on  real 
differences  in  the  nature,  situation,  and  condition  of  things. 

We  think  the  only  provisions  in  the  state  constitution  that  could  be 
reasonably  invoked  against  the  proposed  laws  and  regulations  are  the 
guaranteed  right  of  "  acquiring,  possessing,  and  defending  property," 
and  the  provision  that,  "  Private  property  shall  not  be  taken  for  public 
uses  without  just  compensation"  (Dec.  of  Rights,  Sections  i  and  21). 
If,  however,  the  proposed  legislation  would  not  conflict  with  the  latter 
provision,  it  evidently  would  not  with  the  former ;  hence  only  the  latter 
one  need  be  considered. 

The  question  of  what  constitutes  a  "taking"  of  private  property  in 
the  constitutional  sense  of  the  term  has  been  much  considered  and 
variously  decided.  In  the  earlier  cases  and  in  the  older  states  the  pro- 
vision has  been  construed  strictly.  In  some  states,  in  later  cases,  it  has 
been  construed  more  widely,  to  include  legislation  formerly  not  con- 
sidered within  the  provision.  Still  more  recently,  however,  the  tendency 
seems  to  be  back  to  the  principles  enunciated  in  the  earlier  cases.  In 
Massachusetts,  one  of  the  earliest  states  to  adopt  the  constitutional  pro- 
vision, and  in  Maine,  adopting  the  same  provision  in  succession,  the 
courts  have  uniformly  considered  that  it  was  to  be  construed  strictly  as 
against  the  police  power  of  the  legislature. 

Commonwealth  vs.  Tewksbury,  11  Met.  55,  decided  in  1846,  was  a 
case  where  the  legislature  prohibited  the  owners  from  removing  "  any 
stones,  gravel,  or  sand  "  from  their  beaches  in  Chelsea  as  necessary  for 
the  protection  of  Boston  harbor.  The  court  held  that  the  statute  did 
not  operate  to  "  take  "  property  within  the  meaning  of  the  constitution, 
but  was  "  a  just  and  legitimate  exercise  of  the  power  of  the  legislature 
to  regulate  and  restrain  such  particular  use  of  property  as  would  be 
inconsistent  with  or  injurious  to  the  rights  of  the  public."  Common- 
wealth vs.  Alger,  7  Cush.  53,  decided  in  185 1,  was  a  case  where  the 
defendant  was  prohibited  by  statute  from  erecting  and  maintaining  a 
wharf  on  his  own  land  (flats)  beyond  certain  fixed  lines.  The  court 
held  that  the  defendant's  title  to  the  land  (flats)  was  a  fee  simple,  and 
that  but  for  the  statute  he  would  have  had  full  right  to  erect  and  main- 
tain wharves  upon  any  part  of  it  where  they  would  not  obstruct  naviga- 
tion. It  was  not  claimed  that  the  proposed  wharf  would  obstruct 
navigation,  but  rather  admitted  that  it  would  not.    The  court  further 


268  AMERICAN  STATE  GOVERNMENT 

held,  however,  that  the  statute  was  within  the  legislative  power  and  not 
forbidden  by  any  clause  in  the  constitution.  The  question  was  consid- 
ered at  length  in  an  opinion  by  Chief  Justice  Shaw,  and  the  principle 
stated  as  follows,  viz.  (p.  84) : 

We  think  it  a  settled  principle,  growing  out  of  the  nature  of  well-ordered 
civil  society,  that  every  holder  of  property,  however  absolute  and  unqualified 
may  be  his  tide,  holds  it  under  the  implied  liability  that  his  use  of  it  may  be  so 
regulated  that  it  shall  not  be  injurious  to  the  equal  enjoyment  of  others  having 
an  equal  right  to  the  enjoyment  of  their  property,  nor  injurious  to  the  rights 
of  the  community.  All  property  in  this  commonwealth,  as  well  that  in  the 
interior  as  that  bordering  on  tidewaters,  is  derived  direcUy  or  indirectly  from 
the  government  and  held  subject  to  those  general  regulations  which  are  neces- 
sary for  the  common  good  and  general  welfare.  Rights  of  property,  like  all 
other  social  and  conventional  rights,  are  subject  to  such  reasonable  limitations 
in  their  enjoyment  as  shall  prevent  them  from  being  injurious,  and  to  such 
reasonable  restraints  and  regulations  established  by  law  as  the  legislature, 
under  the  governing  and  controlling  power  vested  in  them  by  the  constitution, 
may  think  necessary  and  expedient.  This  is  very  different  from  right  of 
eminent  domain,  etc. 

In  the  case  Wadleigh  vs.  Oilman,  12  Maine,  403,  decided  in  1835, 
only  fifteen  years  after  the  adoption  of  our  constitution,  there  was  upon 
the  plaintiff's  land  a  wooden  building.  A  city  ordinance  was  passed  by 
legislative  authority  prohibiting  the  erection  of  wooden  buildings  within 
certain  limits,  which  included  the  plaintiff's  building.  After  the  passage 
of  the  ordinance  the  plaintiff  moved  his  building  to  another  place  within 
the  same  inhibited  limits.  The  defendant  as  city  marshal,  acting  under 
the  ordinance,  entered  upon  the  plaintiff's  land  and  took  the  building 
down.  The  court  held  the  ordinance  valid  and  the  defendant  protected, 
and  declared  as  follows  (p.  405)  : 

Police  regulations  may  forbid  such  a  use  and  such  modifications  of  private 
property  as  would  prove  injurious  to  the  citizens  generally.  This  is  one  of 
the  benefits  which  men  derive  from  associating  in  communities.  It  may  some- 
times occasion  inconvenience  to  an  individual,  but  he  has  compensation  in 
participating  in  the  general  advantage.  Laws  of  this  character  are  unquestion- 
ably within  the  .scope  of  the  legislative  power  without  impairing  any  constitu- 
tional provision.  It  docs  not  appropriate  private  property  to  public  uses,  but 
merely  regulates  its  enjoyment. 

In  Cushman  7's.  Smith,  34  Maine,  247,  decided  fifteen  years  later, 
in  an  elaborate  opinion  by  Chief  Justice  Sheplcy,  the  court  said  of  the 
constitutional  provision  in  question  (p.  258)  : 

The  design  appears  to  have  been  simply  to  declare  that  private  property 
shall  not  be  changed  to  pulilic  proportv.  nor  transferred  from  the  owners  to 
others  for  public  use  without  just  compensation. 


THE  STATE  ADMINISTRATION  269 

In  Jordan  ts.  Woodward,  40  Maine,  317,  it  was  said  by  the  court  at 
P-  324: 

Strictly  speaking,  private  property  can  only  be  said  to  have  been  taken  for 
public  uses  when  it  has  been  so  appropriated  that  the  public  have  certain  and 
well-defined  rights  to  that  use  secured,  as  the  right  to  use  the  public  highway, 
the  turnpike,  the  ferry,  the  railroad,  and  the  like.  f 

The  same  doctrine  was  recognized  in  Preston  vs.  Drew,  ^^  Maine,  558  ; 
State  vs.  Gurney,  37  Maine,  156  ;  Boston  &:  Maine  R.  R.  Co.  vs.  County 
Commissioners,  79  Maine,  386  ;  and,  as  late  as  1905,  in  State  vs.  Robb, 
100  Maine,  180. 

There  are  two  reasons  of  great  weight  for  applying  this  strict  con- 
struction of  the  constitutional  provision  to  property  in  land  :  first,  such 
property  is  not  the  result  of  productive  labor,  but  is  derived  solely  from 
the  state  itself,  the  original  owner;  second,  the  amount  of  land  being 
incapable  of  increase,  if  the  owners  of  large  tracts  can  waste  them  at 
will  without  state  restriction,  the  state  and  its  people  may  be  helplessly 
impoverished  and  one  great  purpose  of  government  defeated. 

Regarding  the  question  submitted  in  the  light  of  the  doctrine  above 
stated  (being  that  of  Maine  and  Massachusetts  at  least),  we  do  not 
think  the  proposed  legislation  would  operate  to  "  take  "  private  property 
within  the  inhibition  of  the  constitution.  While  it  might  restrict  the 
owner  of  wild  and  uncultivated  lands  in  his  use  of  them,  might  delay 
his  taking  some  of  the  product,  might  defer  his  anticipated  profits,  and 
even  thereby  might  cause  him  some  loss  of  profit,  it  would  nevertheless 
leave  him  his  lands,  their  product  and  increase,  untouched,  and  without 
diminution  of  title,  estate,  or  quantity.  He  would  still  have  large  measure 
of  control  and  large  opportunity  to  realize  values.  He  might  suffer 
delay  but  not  deprivation.  While  the  use  might  be  restricted,  it  would 
not  be  appropriated  or  "  taken." 

In  the  following  cases  restrictive  statutes  for  the  protection  of  prop- 
erty and  other  material  interests  of  the  people  were  held  to  be  within  the 
police  power,  and  not  a  taking  of  private  property,  viz. :  limiting  the  height 
of  buildings  though  the  owner  owns  usque  and  coelum  (Welch  vs.  Swasey, 
193  Mass.  364)  ;  prohibiting  the  erection  of  wooden  buildings  within 
specified  limits  (Wadleigh  vs.  Oilman,  12  Maine,  403),  even  when  the 
owner  had  begun  to  erect  the  building  before  the  statute  was  enacted 
(Salem  vs.  Maynes,  123  Mass.  372);  authorizing  the  destruction  of 
buildings  without  compensation  to  prevent  the  spread  of  a  conflagra- 
tion (Am.  Print  Works  vs.  Lawrence,  23  N.  J.  'L.  9)  ;  prohibiting  the 
further  use  of  buildings  and  appliances  for  brewing  purposes,  although 
they  had  been  erected  and  fitted  for  that  purpose  when  brewing  was  a 
lawful  business  (Mugler  vs.  Kansas  City,  123  U.  S.  623)  ;  prohibiting  the 
erection  of  fences  on  one's  own  land  to  gratify    spite  against  others 


270  AMERICAN  STATE  GOVERNMENT 

(Karasek  vs.  Peier  (Wash.),  50  L.  R.  A.  345  ;  Smith  vs.  Morse,  148 
Mass.  407) ;  prohibiting  the  wasteful  burning  of  natural  gas  by  the 
owner  (Townsend  vs.  State  (Ind.),  37  L.  R.  A.  294);  prohibiting  the 
use  of  artificial  means,  by  the  owners  of  gas  wells,  to  increase  the  natural 
flow  of  the  gas  from  them  (Manufacturer's  Gas  Co.  vs.  Indiana  Natural 
Gas  Co.,  155  Ind.  467  ;  50  L.  R.  A.  768);  authorizing  dams  for  the 
purpose  of  reclaiming  swamp  lands  where  the  effect  was  to  oblige  land- 
owners to  construct  and  maintain  dikes  to  protect  their  lands  from  the 
water  raised  (Manigault  vs.  Springs,  199  U.S.  473);  prohibiting  one 
from  allowing  weeds  to  grow  on  his  own  land  (St.  Louis  vs.  Gault,  179 
Mo.  8  ;  63  L.  R.  A.  778) ;  limiting  the  quantity  of  land  any  person  or 
family  may  cultivate  within  city  limits  (Summerville  vs.  Presley,  2)2>  S-  C. 
56);  prohibiting  the  flow  of  water  from  a  private  artesian  well  except 
for  certain  specified  beneficial  purposes,  as  irrigation  or  domestic  use 
(Ex  parte  Elam  (Cal.),  91  Pac.  Rep.  811).  In  Windsor  vs.  State  (Md.), 
64  At.  Rep.  288,  a  statute  restricted  owners  of  private  oyster  beds  in 
taking  oysters  from  them.  It  was  held  constitutional  and  not  a  taking 
of  private  property.  The  court,  quoting  from  Judge  Stor)%  said  :  "  Prop- 
erty of  every  kind  is  held  subject  to  those  regulations  which  are  neces- 
sary- for  the  common  good  and  general  welfare.  And  the  legislature  has 
the  power  to  define  the  mode  and  manner  in  which  one  may  use  his 
property." 

The  foregoing  considerations  lead  us  to  the  opinion  at  present  that 
the  proposed  legislation,  for  the  purposes  and  with  the  limitations  named 
in  the  Senate  order,  would  be  within  the  legislative  power  and  would 
not  operate  as  a  taking  of  private  property  for  which  compensation  must 
be  made. 

Respectfully  submitted,  . 
March  10,  1908  LuciLius  A.  Emery 

Wm.  p.  Whitehouse 
Sewell  C.  Strout 
Henry  C.  Peauody 
Albert  M.  Spear 
Leslie  C.  Cornish 

Mr.  Justice    Woodard,  one  of  the    justices  of   the  court   when  the 

Senate  order  was  passed,  died  before  the  foregoing  opinion  could  be 

prepared.    His  succes.sor,  Mr.  Justice  King,  was  not  appointed  for  several 

months  after  the  passage  of  the  Senate  order,  and  holds  that,  therefore, 

the  Senate  has  not  required  any  opinion  from  him. 

LuciLius  A.  Emery 

Note.  Mr.  Justice  Albert  R.  Savage  declined  to  give  an  opinion  upon 
the  question  submitted,  for  the  reason  that  he  considered  it  not  a 
"'  .solemn  occasion "  as  required  by  Article  VI,  Section  3,  of  the 
constitution  of  Maine. 


THE  STATE  ADMINISTRATION  27 1 

CONSERVATION  OF  NATURAL  RESOURCES  IN  THE 
STATE  OF  NEW  YORK  ^ 

By  Governor  Charles  E.  Hughes 

The  wise  and  patriotic  summons  of  the  President  to  the  consideration 
of  necessary  steps  for  the  conservation  of  our  natural  resources  met  with 
a  cordial  response  from  the  people  of  the  state  of  New  York.  The  Em- 
pire State  has  been  bountifully  blessed  by  nature,  and  for  a  long  period 
there  has  been  a  steady  growth  in  the  appreciation  of  her  priceless  treas- 
ures and  of  the  importance  of  preserving  them.  Our  vast  stretches  of 
forests,  feeding  our  streams  and  nourishing  the  agricultural  and  industrial 
activities  of  our  citizens,  long  remained  the  subject  of  selfish  devastation 
in  reckless  disregard  of  the  just  demands  of  future  generations,  and  with- 
out thought  of  the  essential  conditions  of  our  continued  prosperity.  That 
sagacious  statesman,  De  Witt  Clinton,  foresaw  the  results  of  careless 
waste  of  nature's  bounty,  and  of  the  wanton  sacrifice  of  our  capital, 
thoughtlessly  supposed  to  be  inexhaustible,  in  the  satisfaction  of  the 
demands  of  the  moment.    In  addressing  the  legislature  in  1822  he  said : 

Our  forests  are  falling  rapidly  before  the  progress  of  settlement,  and  a  scar- 
city of  wood  for  fuel,  ship  and  house  building,  and  other  useful  purposes,  is 
already  felt  in  the  increasing  prices  of  that  indispensable  article.  No  system  of 
plantation  for  the  production  of  trees,  and  no  system  of  economy  for  their  pres- 
ervation, has  been  adopted,  and  probably  none  will  be  until  severe  privations 
are  experienced. 

From  time  to  time  public-spirited  citizens  and  farseeing  statesmen 
called  attention  to  the  need  of  a  system  of  conservation,  but  it  is  only  in 
a  recent  period  that  measures  of  protection  were  adopted.  Not  only  did 
the  state  fail  to  acquire  and  hold  from  spoliation  our  forest  tracts,  but 
lands  which  had  passed  into  the  control  of  the  state  were  recklessly  dis- 
posed of  at  nominal  prices,  and  are  now,  under  a  new  policy,  the  subject 
of  reacquisition  at  greatly  increased  cost.  It  may  be  of  value  briefly  to 
review  the  experience  of  the  state  during  the  past  twenty-five  years. 
Governor  Cleveland  in  1884  thus  addressed  the  legislature  upon  this 
subject,  speaking  of  the  practice  which  had  prevailed : 

The  Hudson,  Mohawk,  and  Black  rivers  are  to  a  very  large  extent  fed  by 
streams  and  lakes  in  the  southern  slopes  of  the  Adirondack  wilderness,  and 
the  Black  River  may  well  be  regarded  as  the  principal  feeder  of  the  Erie  Canal. 
This  statement  renders  the  importance  of  protecting  the  water  in  the  sources 
of  the  rivers  named,  from  serious  diminution,  distinctly  apparent.  The  fact 
that  this  can  only  be  done  by  the  preservation  of  the  forests  bordering  on 
the  sources  of  water  supply  needs  no  demonstration,  and  was  recognized  by  the 
last  legislature  by  the  passage  of  an  act  prohibiting  the  further  sale  of  our 
northern  wilderness  lands. 

1  From  Proceedings  of  the  Conference  of  Governors,  1908. 


272  AMERICAN  STATE  GOVERNMENT 

The  immense  volume  of  commerce  which  passes  through  the  Erie  Canal 
and  the  Hudson  River  to  the  seaboard,  and  the  low  stage  of  water  during  the 
summer  in  the  last-named  waterway  as  well  as  the  other  rivers  and  streams  of 
the  state,  have  attracted  the  attention  of  the  public  to  the  necessity  of  arresting 
the  further  destruction  of  our  northern  forests. 

This  is  certainly  a  very  important  matter,  and  should  receive  early  and  seri- 
ous attention.  We  find  ourselves  facing  the  danger  which  now  so  excites  the 
people,  because  the  interests  of  the  state  have  not  been  cared  for  in  the  years 
that  are  past,  and  because  our  forest-laden  lands  have  been  recklessly  disposed 
of  at  nominal  prices,  until,  at  this  late  day,  we  are  awakened  to  the  fact  that 
the  control  which  the  state  should  have  always  maintained  over  that  part  of 
those  lands  which  are  important  to  the  preservation  of  our  streams  has  been 
to  a  large  extent  surrendered. 

The  plan  has  been,  it  seems,  quite  generally  adopted  by  the  grantees  from 
the  state  to  refuse  to  pay  taxes  assessed  upon  these  lands  after  their  purchase, 
and  to  permit  them  to  be  sold  for  such  taxes,  the  owner  taking  advantage  of 
the  time  between  the  levying  of  the  taxes  and  the  sale  of  the  land  to  cut  off 
and  sell  such  timber  as  he  finds  to  his  profit.  In  default  of  other  bidders  at 
such  tax  sale,  the  state  becomes  the  purchaser.  Two  years  is  allowed  the 
delinquent  owner  after  the  sale  to  redeem  his  land. 

Sales  of  these  lands  are  customarily  made  by  the  comptroller  once  in  about 
five  years,  and  then  they  are  sold  for  taxes  that  have  remained  due  and  unpaid 
for  a  period  not  less  than  five  years  prior  to  the  sale ;  thus  in  1881  forest  lands 
were  sold  for  taxes  levied  thereon  between  the  years  1871  and  1876.  It  will 
be  readily  seen  that  this  allows  the  grantees  of  these  lands,  who  from  the  first 
day  of  their  ownership  deliberately  refused  payment  of  all  taxes,  from  seven 
to  twelve  years  within  which  to  cut  off  and  sell  timber  —  thus  realizing  an 
immense  return  from  the  amount  originally  paid  for  the  land. 

At  that  time  a  system  of  better  control  of  the  forest  lands  was  sug- 
gested, and  the  project  of  having  the  state  purchase  immense  tracts  of 
these  lands  was  opposed  as  involving  an  extravagant  expenditure.  In 
1885  the  attention  of  the  legislature  was  again  directed  to  the  subject 
by  Governor  Hill,   who  said : 

The  forestry  problem  has  in  late  years  became  an  important  one,  and  through 
natural  causes  and  through  the  operations  of  some  industries  in  the  northern 
counties  of  the  state,  it  is  becoming  every  year  more  important  and  pressing. 
It  is  claimed  by  those  who  have  given  the  subject  attention  that  the  preservation 
of  the  forest  growth,  especially  in  those  parts  of  the  Adirondack  region  which  are 
unfit  for  profitable  tillage,  is  a  matter  of  serious  concern  to  the  material  prosperity 
of  the  entire  state.  Valuable  water  courses  arc  largely  dependent  upon  the  preser- 
vation of  the  forest  trees  now  standing  and  a  restoration  of  a  new  growth  to  tracts 
which  have  been  left  waste  ;  and  this  protection  of  rivers  and  streams  is  doubtless 
in  this  matter  the  chief  considerati<jn  to  the  stale  at  large.  In  addition,  however, 
the  northern  counties  are  threatened  at  no  distant  day  with  a  serious  diminu- 
tion, or  even  loss,  not  only  of  the  profitable  and  rapidly  growing  industry  of 
caring  for  the  numerous  persons  who,  from  within  and  without  the  state,  resort 
to  their  lakes  and  woods  for  health  or  pleasure,  but  also  of  the  luinbering 


THE  STATE  ADMINISTRATION  273 

industry  itself.  It  seems  probable  also  that  the  owners  of  forest  lands  ought  to 
be  afforded  ample  protection  against  trespassers  who  set  fire  to  or  cut  or  injure 
trees  upon  such  owners'  lands. 

The  matter  was  made  the  subject  of  investigation  by  commission. 
And  it  was  in  1885  that  a  Forest  Commission  was  established,  and  the 
lands  then  owned,  or  which  might  thereafter  be  acquired  by  the  state 
within  specified  counties,  were  constituted  a  forest  preserve.  The  state 
already  had  considerable  holdings  of  forest  lands,  principally  through  tax 
defaults.  It  was  further  provided  that  lands  composing  the  forest  pre- 
serve should  "forever  be  kept  as  wild  forest  lands,"  and  should  "not  be 
sold  or  leased  by  any  corporation,  public  or  private."  The  Forest  Com- 
mission, three  in  number,  were  given  the  care  and  control  of  the  preserve 
and  charged  with  the  duty  to  protect  the  forests  on  the  preserve  and  to 
promote  their  further  growth. 

In  1887  provision  was  made  for  the  disposition  of  separated  small  par- 
cels in  the  preserve,  or  the  timber  thereon,  under  important  restrictions. 

In  1890  Governor  Hill  brought  to  the  attention  of  the  legislature  the 
advisability  of  a  better  definition  of  the  limits  within  which  lands  were  to 
be  retained  by  the  state  for  forest  purposes,  and  of  appropriate  legislation 
with  regard  to  the  creation  by  the  state  of  a  forest  park  in  the  Adiron- 
dacks.    In  a  special  message  he  said : 

The  portion  of  northern  New  York  know  as  the  "  Adirondacks  "  has  be- 
come a  great  summer  and  winter  resort  for  persons  seeking  pleasure  or  health, 
not  only  from  our  own  state  but  from  other  sections  of  the  Union.  It  is  rapidly 
becoming  a  nation's  pleasure  ground  and  sanitarium. 

The  state  now  owns  a  large  portion  of  this  section,  which  has  been  placed 
under  the  control  of  a  Forest  Commission.  The  present  statutes  seem  to  con- 
template retaining  all  the  lands  that  come  to  the  state  from  tax  sales  as  part  of 
a  vast  park,  without  reference  to  quality,  quantity,  or  locality ;  and  many  par- 
cels thus  reserved  are  small  and  are  not  connected  with  the  main  body  of 
state  lands. 

It  seems  to  me  that  the  limits  within  which  lands  are  to  be  retained  by  the 
state  for  this  purpose  should  be  settled  and  defined,  and  should  include  the 
wilder  portion  of  this  region,  covering  the  mountains  and  lakes  at  and  around 
the  headwaters  of  the  several  rivers  that  rise  in  that  locality,  including  the 
Hudson  River ;  and  that  all  the  lands  outside  of  these  limits  should  be  subject 
to  sale  as  other  state  lands  are  sold.  If  practicable,  these  lands  could  be  ex- 
changed for  wild  and  forest  lands  within  the  limits  prescribed. 

Considerable  complaint  has  been  made  that  persons  desiring  to  build  sum- 
mer camps  or  cottages  upon  lands  belonging  to  the  state  have  not  been  per- 
mitted to  do  so.  I  can  see  no  reason  why,  under  suitable  restrictions,  small 
parcels  should  not  be  leased  at  a  moderate  rental  for  such  purposes.  Such  oc- 
cupants would  have  an  interest  in  preserving  the  forests  in  all  their  beauty,  and 
would  be  the  best  of  fire  wardens  and  foresters,  while  the  wilderness  would  thus 
afford  a  summer  home  to  persons  of  moderate  means,  as  well  as  to  the  wealthy. 

The  subject  is  worthy  of  the  most  careful  consideration.  It  is  represented 
to  me  by  those  who  are  familiar  with  the  situation  and  needs  of  that  section, 


2  74 


AMERICAN  STATE  GOVERNMENT 


and  in  whose  judgment  I  have  confidence,  that  a  state  park,  from  fifty  to  seventy 
miles  square,  can  be  obtained  by  the  state  in  that  region  at  comparatively  tri- 
fling expense,  and  that  when  obtained,  if  judiciously  and  sensibly  managed,  it 
will  prove  of  inestimable  value  and  benefit  to  the  whole  country. 

A  personal  inspection  on  my  part  last  summer  of  a  portion  of  the  Adiron- 
dack region  confirms,  in  my  judgment,  the  desirability  of  some  appropriate 
legislation  upon  this  subject. 

It  is  believed  to  be  the  true  policy  of  the  state  to  encourage  rather  than  re- 
tard visitation  to  this  delightful  region,  and  a  broader  and  more  enlightened 
policy  than  that  which  has  heretofore  been  followed  should  be  pursued.  Sev- 
eral reasons  are  apparent  why  it  is  expedient  that  some  independent  commis- 
sion should  investigate  this  matter  and  originate  a  scheme  for  carrying  out  the 
suggestions  herein  outlined,  rather  than  the  Forest  Commission,  whose  powers 
are  already  limited  by  statute  and  whose  duties  are  confined  to  a  mere  preser- 
vation of  the  forests. 

I  think  the  Adirondack  forests,  instead  of  being  an  expense  and  burden  to 
the  state,  are  capable,  under  the  liberal  policy  here  suggested,  of  paying  all  the 
expenses  of  their  preservation,  as  well  as  of  yielding  a  handsome  revenue  to 
the  state. 

The  action  taken  by  the  legislature  upon  this  recommendation  w^as  to 
authorize  the  Forest  Commission  to  purchase  lands,  located  within  such 
counties  as  included  the  forest  preserve,  as  should  be  available  for  the 
purpose  of  a  state  park,  at  a  price  not  to  exceed  $1.50  per  acre ;  but  the 
act  appropriated  only  $25,000  for  the  purpose. 

In  1892  another  act  was  passed  establishing  a  state  park  to  be  known 
as  the  Adirondack  Park,  which  should  be  "  forever  reserved,  maintained, 
and  cared  for  as  ground  open  for  the  free  use  of  all  the  people  for  their 
health  or  pleasure,  and  as  forest  lands  necessary  to  the  prcscrv'ation  of 
the  headwaters  of  the  chief  rivers  of  the  state  and  a  future  timber  supply." 
And  the  Forest  Commission  was  authorized  to  purchase  land  in  certain 
counties  mentioned.  They  were,  however,  given  power  to  sell  any  portion 
of  the  lands  within  s])ecified  counties  the  ownership  of  which,  in  their  opin- 
ion, was  not  needed  to  promote  the  purposes  in  view.  The  theory  was, 
apparently,  that  detached  pieces  could  be  sold,  and  that  the  proceeds  would 
be  sufficient  to  buy  the  desired  amount  within  the  park  limits,  and  no  ad- 
equate appropriation  w-as  made  for  independent  acquisition  on  any  suitable 
scale.  This  policy,  how'cver,  w-as  not  a  successful  one,  and,  as  (jovernor 
Flower  in  his  annual  message  of  1893  said,  "The  results  to-day,  after 
nearly  seven  years'  effort  to  establish  an  Adirondack  Park,  are  disapj^oint- 
ing."  He  pointed  out  that  while  the  existing  methods  would  answer  "  the 
temporary  pur|DOse  of  getting  rid  of  lands  useless  for  a  forest  preserve 
and  acquiring  other  lands  needed,  so  far  as  the  proceeds  of  sales  would 
permit,  it  would  not  do  for  a  permanent  and  exclusive  state  policy."  He 
added  that  if  it  was  the  desire  of  the  people  that  the  state  should  abso- 
lutely own  two  or  three  million  acres  of  the  forest  preserve,  the  lands 
should  be  acquired  at  once  by  right  of  eminent  domain,  and  the  operation 


THE  STATE  ADMINISTRATION 


275 


should  be  comprehensive  and  decisive,  which  would  "  be  vastly  more 
economical  in  the  long  run  than  the  present  policy  of  purchase  by  driblets." 

Governor  Flower's  specific  recommendations  (in  connection  with  a 
reorganization  of  the  Forest  Commission)  were  (i)  that  forest  tracts 
owned  by  individuals  or  private  associations  and  used  mainly  for  the 
purpose  of  recreation  should  be  secured  as  a  part  of  the  forest  preserve 
and  guarded  against  denudation  by  a  contract  with  the  state  providing  for 
exemption  from  taxation  in  consideration  of  forest  protection  and  restric- 
tions on  the  removal  of  timber;  and  (2)  that  revenue  should  be  secured 
to  the  state  "  by  granting  permission  to  fell  trees  above  a  certain  diameter 
on  state  lands  and  to  remove  the  timber." 

Legislation  embodying  these  recommendations  was  enacted  in  1893 
and  the  results  were  thus  stated  by  Governor  Flower  in  his  next  annual 
message : 

These  recommendations  were  promptly  embodied  in  law,  and  the  new  For- 
est Commission  is  now  able  to  report  that  225,000  acres  of  Adirondack  land 
have  been  offered  to  the  state  upon  the  terms  of  the  proposed  contract,  and 
that  standing  spruce  timber  exceeding  twelve  inches  in  diameter  has  been  sold 
on  1 7,468  acres,  of  state  land,  from  which  it  is  expected  that  the  first  year's 
cutting  will  yield  to  the  state  a  revenue  of  552.400.  These  prompt  results  are 
exceedingly  gratifying.  It  thus  appears  that  the  state  forest  preserve  has  been 
increased  by  probably  a  million  dollars'  worth  of  lands  without  any  direct  ap- 
propriation of  public  money,  and  that  the  first  year  of  intelligent  administration 
under  the  new  law  has  insured  to  the  state  an  annual  revenue  largely  in  excess 
of  the  entire  cost  of  maintaining  the  Forestry  Bureau.  Every  lover  of  the 
Adirondacks  and  every  friend  of  forest  preservation  will  rejoice  at  these  results, 
but  they  will  be  particularly  satisfactory  to  the  taxpayers  of  the  state.  If  from 
so  small  a  portion  of  the  forest  preserve  so  considerable  a  revenue  is  received 
without  injury  to  the  forests,  we  can  reasonably  look  forward  to  the  time  when 
the  forest  preserve  will  not  only  be  the  great  conservator  of  our  water  courses 
and  the  restorer  of  health,  but  will  contribute  a  large  part  of  the  money  required 
for  the  support  of  the  state  government. 

All  sales  of  stumpage  were  to  the  highest  bidder.  Applications  for  sales  were 
numerous  and  covered  more  timber  than  the  Forest  Commission  thought  wise 
to  sell  at  that  time.  They  indicate  that  there  will  be  no  diflficulty  in  obtaining 
an  annual  revenue  which  shall  not  only  render  the  department  self-sustaining, 
but  will  leave  a  large  balance,  which  for  the  immediate  future  can  be  applied 
annually  on  the  purchase  of  land  and  the  enlargement  of  the  preserve. 

The  legislative  policy,  declared  two  years  ago,  of  selling  scattered  and  de- 
tached tracts  of  state  forest  land  lying  outside  the  limits  of  the  Adirondack 
Park  has  been  pursued  during  the  year,  but  not  many  sales  have  been  made, 
owing  to  the  depression  in  financial  circles. 

In  1894  a  constitutional  convention  was  held,  and  the  desire  of  the 
people  to  safeguard  the  forests  and  to  place  their  preservation  beyond 
the  reach  of  any  form  of  attack  was  emphatically  expressed.  Public 
opinion  assumed  definite  and  authoritative  statement  in  the  amendment  to 
the  constitution  which  was  recommended  by  the  convention  and  adopted 


276  AMERICAN  STATE  GOVERNMENT 

by  the  people.  They  did  not  propose  that  any  devastation  of  the  state 
lands  should  be  permitted  under  any  pretext,  and  they  put  into  the  con- 
stitution the  emphatic  words  of  the  statute  of  1885,  which  as  a  mere 
legislative  enactment  had  been  subject  to  legislative  alteration.  The 
amendment  was  as  follows  (Article  VII,  Section  7)  : 

The  lands  of  the  state  now  owned  or  hereafter  acquired,  constituting  the 
forest  preserve  as  now  fixed  by  law,  shall  be  forever  kept  as  wild  forest  lands. 
They  shall  not  be  leased,  sold,  or  exchanged,  or  be  taken  by  any  corporation, 
public  or  private,  nor  shall  the  timber  thereon  be  sold,  removed,  or  destroyed. 

The  policy  of  forest  preservation  was  thus  imbedded  in  the  funda- 
mental law. 

The  special  committee  on  State  Forest  Preservation  of  the  Constitu- 
tional Convention  reported  that  they  were  of  the  opinion  that  "  for  the 
perfect  protection  and  preservation  of  the  state  lands,  other  lands  con- 
tiguous thereto  should,  as  soon  as  possible,  be  purchased  or  otherwise 
acquired,"  but  they  felt  that  any  action  to  that  end  was  more  properly 
within  the  province  of  the  legislature  than  of  the  convention.  Governor 
Morton  in  his  annual  message  of  1896  described  the  constitutional 
policy  as  one  which  was  "  giving  satisfaction  to  the  people,"  and  pointed 
out  that  "  unless  these  lands  are  acquired  within  a  reasonable  time,  they 
can  only  be  obtained  at  higher  cost  many  years  hence."  Adequate  ap- 
propriations for  extensive  purchases,  however,  were  not  made  until 
1897.  Governor  Black  in  his  annual  message  of  that  year  thus  stated 
the  situation : 

Private  individuals  have  taken  advantage  of  the  state's  neglect,  until  of  the 
entire  Adirondack  region,  consisting  of  more  than  three  and  a  half  million 
acres,  the  state  owns  eight  hundred  and  forty-one  thousand,  less  than  a  quar- 
ter; and  of  the  proposed  Adirondack  Park  of  two  million  eight  hundred 
thousand  acres,  it  owns  even  a  smaller  percentage,  about  six  hundred  and 
sixty-one  thousand  acres.  Of  this  proposed  park  more  than  eight  hundred 
and  eighty  thousand  acres  are  held  as  private  preserves  and  more  than  a 
million  and  a  quarter  acres  by  lumbermen  and  others,  so  that  of  the  proposed 
total  area  of  two  million  eight  hundred  thousand  acres  more  than  two  millions 
are  owned  by  private  individuals.  More  than  a  million  and  a  quarter  of  the 
two  millions  so  owned  are  now  subject  to  fire  and  ax,  and  the  devastation 
wrought  yearly  is  appalling  and  disgraceful.  More  than  four  hundred  and 
fifty  million  feet  of  wood  and  timber  are  cut,  and  more  than  one  hundred 
thousand  acres  stripped,  ever)'  year.  This  work  of  devastation  is  progressing 
fast.  The  banks  of  the  lakes  and  rivers  and  all  sections  accessible  from  either 
are  ravaged  at  such  a  pace  that  but  few  years  more  can  elapse  before  that 
region,  in  many  respects  the  most  wonderful  and  valuable  in  the  world,  will 
be  practically  destroyed.  The  parts  acquired  or  claimed  by  individuals  are  the 
best.  A  traveler  through  any  desirable  portion  of  that  country  is  sure  to  be 
met  with  the  charge  of  trespassing,  for  the  cases  are  rare  in  which  the  title  of 
the  state  to  a  desirable  tract  is  acknowledged.  Some  time  this  deplorable  con- 
dition must  be  rectified.  Every  year  the  lo.ss  to  the  state  grows  larger,  in  all 
cases  difficult,  and  in  some  cases  impossible  of  recovery.    The  land  is  steadily 


THE  STATE  ADMINISTRATION 


277 


and  rapidly  increasing  in  value.  The  bogus  title  burrows  further  out  of  sight 
the  longer  it  is  let  alone.  Witnesses  die,  and  the  only  thing  sure  to  increase 
is  the  encroachment  of  individuals  upon  the  domain  of  the  state.  The  enlarge- 
ment of  the  canals  will  require  more  water  and  the  demand  in  every  direction 
is  increasing,  while  the  supply  is  steadily  falling  off.  A  subject  of  such  magni- 
tude should  not  be  postponed  nor  conducted  with  the  halting  method  which  is 
too  apt  to  distinguish  public  enterprises  in  which  large  appropriations  afford 
convenient  resting  places  in  which  officeholders  may  grow  old.  Not  long  ago 
the  state  appropriated  ;?.  1,000, 000  to  preserve  the  beauties  of  Niagara  Falls. 
That  subject  is  without  significance  compared  to  the  Adirondack  forests. 
Every  consideration  of  health,  pleasure,  economy,  and  safety  urge  the  speedy 
consideration  of  this  subject,  and  such  consideration  should  include  appropria- 
tions adequate  to  ascertain  the  nature  of  the  titles  adverse  to  the  state,  and  to 
recover  where  the  titles  are  insufficient  and  to  purchase  where  they  are  valid. 
Any  other  course  would  be  false  and  unwise  economy. 

Thereupon  the  legislature  appropriated  $1,000,000  for  the  acquisition 
of  forest  lands,  and  created  the  Forest  Preserve  Board,  with  authority 
to  purchase  tracts  within  the  Adirondack  Park.  With  this  appropriation 
the  board  acquired  over  two  hundred  and  fifty  thousand  acres  at  an 
average  cost  of  $3.74  per  acre.  In  1898  another  appropriation  was  made 
of  $500,000,  and  in  the  years  1899  and  1900,  under  the  administration 
of  Governor  Roosevelt,  $600,000  was  appropriated  for  these  purposes. 
No  further  appropriations  were  made  until  1904,  when  there  was  an 
addition  of  $250,000.  In  1906  $400,000  more  was  appropriated,  and 
this  was  followed  by  an  appropriation  in  1907  of  $500,000.  With  these 
moneys  the  forest  holdings  of  the  state  have  largely  been  increased. 
Provision  has  also  been  made  for  the  acquisition  of  forest  lands  in  the 
Catskill  Mountains,  and  the  Catskill  Park  has  been  delimited,  and  pur- 
chases have  been  made  in  this  region  with  a  portion  of  the  moneys 
above  mentioned. 

The  area  of  the  proposed  Adirondack  Park  is  3,313,564  acres,  and 
that  of  the  proposed  Catskill  Park  576,120  acres,  making  a  total  of 
3,889,684  acres.  The  land  within  this  Adirondack  Park  now  owned  by 
the  state  amounts  to  1,363,890  acres,  and  within  the  Catskill  Park 
the  state  owns  100,920  acres,  making  a  total  of  1,464,810  acres.  The 
lands  which  are  still  held  in  private  ownership  within  these  parks  thus 
amount  to  2,424,874  acres.  The  total  area  of  the  present  state  forest 
preserve,  including  the  lands  acquired  within  the  two  parks,  amounts  to 
1,593,789  acres.  Purchases  are  made  from  time  to  time  where  they  can 
be  effected  on  advantageous  terms.  The  powers  formerly  possessed  by 
the  Forest  Preserve  Board  are  now  vested  in  the  Forest,  Fish,  and  Game 
Commissioner,  and  purchases  are  made  by  this  commissioner  and  two 
commissioners  of  the  Land  Office  (who  are  elected  state  officers)  acting 
under  designation  by  the  governor.  At  present  the  purchasing  board  is 
composed  of  the  Forest,  Fish,  and  Game  Commissioner,  the  state  comp- 
troller, and  the  Speaker  of  the  assembly. 


278  AMERICAN  STATE  GOVERNMENT 

The  provision  of  the  constitution  prohibiting  the  removal  of  timber 
from  state  lands  in  the  forest  preserve  has  been  the  subject  of  criticism 
because  of  the  prevention  of  scientific  forestry.  The  policy  which  makes 
it  necessary  for  trees  to  be  left  to  fall  and  decay  and  makes  no  provision 
for  taking  proper  advantage  of  nature's  laws  of  growth,  maturity,  and 
renewal,  cannot  be  regarded  as  permanent.  Under  careful  superintend- 
ence the  forests  may  give  their  natural  yield  for  the  benefit  of  the 
people  without  prejudicing  their  preservation,  and  indeed  to  their  benefit. 
This  was  emphasized  by  Governor  Black.  But  the  experience  of  the 
past  has  taught  the  people  to  be  cautious  in  examining  proposals  for 
cutting  timber.  They  fear  that  if  the  opportunity  were  offered  for  the 
removal  of  timber  under  any  pretext,  the  strain  upon  state  administra- 
tion would  be  too  strong,  and  that  avarice,  looking  only  for  immediate 
gains,  would  cause  the  most  serious,  if  not  irreparable,  losses.  They 
have  watched  the  destruction  of  the  forests  too  long  to  be  easily  satis- 
fied with  promises.  They  have  not  been  ready  to  take  chances  of 
further  devastation  of  the  forests,  and  they  will  not  be  disposed  to  make 
changes  in  the  constitutional  provision  which  protects  them  until  the 
rules  of  conservative  cutting,  based  upon  proper  regard  for  forest  pro- 
tection, are  so  well  established  and  observed  in  the  exercise  of  private 
rights  as  to  remove  any  menace  to  the  public  interest  in  case  the  state 
should  be  empowered  to  harvest  its  forest  crop. 

As  Governor  Roosevelt  said  in  his  annual  message  of  1900  : 

A  primeval  forest  is  a  great  sponge  which  absorbs  and  distills  the  rainwater, 
and  when  it  is  destroyed  the  result  is  apt  to  be  an  alternation  of  flood  and 
drought.  Forest  fires  ultimately  make  the  land  a  desert,  and  are  a  detriment 
to  all  that  portion  of  the  state  tributary  to  the  streams  through  the  woods 
where  they  occur.  Every  effort  should  be  made  to  minimize  their  destructive 
influence.  Wc  need  to  have  our  system  of  forestry  gradually  developed  and 
conducted  along  .scientific  principles.  When  this  has  been  done  it  will  be 
possible  to  allow  marketable  lumljcr  to  be  cut  everywhere  without  damage  to 
the  forests,  —  indeed,  with  positive  advantage  to  them  ;  but  until  lumbering  is 
thus  conducted,  on  strictly  scientific  principles  no  less  than  upon  principles  of 
the  strictest  honesty  toward  the  state,  we  cannot  afford  to  suffer  it  at  all  in  the 
state  forests. 

The  importance  of  forestry  was  also  emphasized  by  Governor  Odell 
and  by  Governor  Higgins.  We  may  therefore  look  forward  to  a  time 
when  improved  methods  of  caring  for  the  forests  will  be  adopted,  and 
when,  with  advantage  to  the  state's  interests,  we  shall  secure  their 
proper  yield.  The  absolute  restriction  of  the  constitutional  amendment 
makes,  however,  an  emphatic  protest  of  the  people  against  any  sellish 
designs  upon  these  resources  of  the  state,  and  nothing  will  be  tolerated 
which  will  in  any  degree  open  our  forest  preserve  to  greedy  spoliations. 

The  state  not  only  has  sought  to  protect  its  forests  by  purchases  and 
by  agreements  with  owners  of  forest  tracts,  but  it  has  also  begun  the 


THE  STATE  ADMINISTRATION 


279 


work  of  reforestation.  While  this  has  so  far  been  prosecuted  on  a 
relatively  small  scale,  gratifying  progress  has  been  made.  We  have 
several  nurseries,  and  this  year  1,100,000  pine  and  spruce  trees  have 
been  set  out.  This  work  can  be  conducted  with  comparatively  small 
outlay  and  in  a  constantly  increasing  measure.  Appropriation  was  also 
made  at  the  last  session  of  the  legislature  to  establish  additional  nurs- 
eries for  the  propagation  of  forest  trees  to  be  furnished  to  citizens  of  the 
state  at  cost,  and  to  be  planted  under  the  direction  of  the  Forest,  Fish, 
and  Game  Commissioner. 

There  has  also  been  a  heightened  appreciation  of  the  importance  of 
preserving  and  caring  for  our  natural  wonders  and  places  of  rare  beauty 
and  grandeur,  which  are  of  inestimable  value  for  the  enjoyment  and  the 
inspiration  of  the  people.  In  1883  provision  was  made  for  the  appro- 
priation of  lands  at  Niagara  Falls,  and  a  state  reservation  was  constituted. 
The  legislature  has  declared  that  it  "  shall  forever  be  reserved  by  the 
state  for  the  purpose  of  restoring  the  scenery  of  Niagara  Falls  and  pre- 
serving it  in  its  natural  condition,  and  kept  open  and  free  of  access  to 
all  mankind  without  fee,  charge,  or  expense  to  any  person  for  entering 
upon  or  passing  to  or  over  any  part  thereof."  A  beautiful  park  adjoin- 
ing the  Falls  has  thus  been  provided,  depredations  have  been  prevented, 
unsightly  structures  have  been  removed,  excellent  roads  have  been  laid 
out,  guard  rails  and  bridges  have  been  built,  and  in  all  the  work  of 
improvement  unnecessary  artificialities  have  been  excluded.  Natural 
slopes  have  replaced  artificial  banks,  trees  have  been  planted,  and  barren 
spots  have  been  beautified  by  suitable  growths.  Thus  the  visitor  to 
Niagara's  sublime  spectacle  may  view  the  Falls  from  a  borderland,  under 
the  protection  of  the  state,  where  accessibility  and  convenience  have 
been  provided  without  sacrifice  of  beauty.  Efforts  to  prevent  improper 
diversion  of  power  and  the  consequent  impainnent  of  the  Falls  culmi- 
nated in  the  Burton  Bill  passed  by  Congress  in  1906. 

Through  the  influence  of  the  late  Hon.  Andrew  H.  Green  of  New 
York,  who  had  been  prominent  in  the  work  of  restoring  natural  con- 
ditions at  Niagara  Falls,  the  American  Scenic  and  Historic  Preserva- 
tion Society  was  founded  in  1895,  an  organization  through  which  the 
public  demand  for  the  preservation  of  places  of  scenic  and  historic 
interest  has  found  powerful  and  effective  expression. 

It  was  in  1895  that  commissioners  were  appointed  in  New  York  to 
meet  with  similar  commissioners  of  New  Jersey  for  the  purpose  of 
devising  means  for  establishing  a  reservation  of  the  Palisades  of  the 
Hudson.  In  1900  the  Palisades  Interstate  Park  was  established  under 
the  care  of  the  two  states,  represented  by  a  joint  commission.  A  large 
amount  of  shore  frontage  has  been  acquired,  and  in  this  way  the  devas- 
tation of  the  Palisades  has,  to  an  important  degree,  been  prevented. 

In  1906  the  beautiful  Watkins  Glen  was  acquired  as  a  state  reserva- 
tion.   In  1907  the  Bronx  River  Reserve  was  established,  consisting  of 


2 So  AMERICAN   STATE  GOVERNMENT 

lands  on  either  side  of  the  Bronx  River  in  New  York  and  Westchester 
counties,  for  the  purpose  of  preserving  the  river  from  contamination 
and  of  creating  a  parkway  for  public  use. 

Last  year  also  the  state  received  a  munificent  gift  from  William  Pryor 
Letchworth,  a  distinguished  citizen  of  the  state,  who  has  rendered  long 
and  notable  service  in  the  cause  of  philanthropy.  Mr.  Letchworth  has 
conveyed  to  the  state,  for  the  purposes  of  a  public  park,  a  tract  of  rare 
beauty  lying  in  Wyoming  and  Livingston  counties,  of  about  one  thou- 
sand acres  in  extent.  Through  this  tract,  now  known  as  Letchworth 
Park,  flows  the  Genesee  River,  with  sublime  scenery  of  canyon  and 
waterfall.  It  is  a  territor}^  of  extraordinary  variety  of  native  growths, 
affording  exceptional  opportunities  to  the  naturalist  and  a  retreat  of 
peculiar  charm  for  the  lover  of  nature.  This  benefaction  fitly  crowns  a 
long  life  of  devotion  to  the  public  welfare. 

During  the  present  year  another  addition  has  been  made  to  the  state 
reser\-ations  by  provision  for  the  retention  and  development  as  a  public 
park  of  the  property  at  Fire  Island,  on  the  Long  Island  coast,  which  was 
acquired  some  years  ago  for  the  purposes  of  temporary  quarantine.  In 
view  of  the  growth  of  metropolitan  population,  the  holding  of  this  strip 
of  seaboard  for  park  purposes  cannot  fail  to  be  of  great  public  benefit. 

A  matter  of  extreme  importance  to  the  future  prosperity  of  the  state 
is  the  development  and  control  of  its  water  powers.  With  increased  facil- 
ities in  the  transmission  of  electrical  power,  the  subject  compels  attention, 
as  the  control  of  the  water  powers  of  the  state  will  mean  largely  the 
domination  of  its  industrial  activities.  From  recent  statistics  it  appears 
that  of  the  entire  horse  power  developed  by  water  for  manufacturing 
purposes  in  the  United  States,  over  one  quarter  is  used  in  New  York. 
And  New  \'ork  is  fortunate  in  having  within  her  borders  so  many  sources 
of  power,  and  in  possessing  extraordinary  opportunities  for  further 
development.  It  is  difficult  to  overestimate  the  great  importance  of  this 
subject  and  the  necessity  of  taking  wise  action  at  the  present  time  in 
order  that  wc  may  properly  care  for  the  interests  of  the  future. 

In  my  annual  message  to  the  legislature  of  1907,  after  referring  to 
the  importance  of  the  policy  of  acquiring  forest  lands,  I  said : 

In  this  connection  it  is  well  to  consider  the  great  value  of  the  undeveloped 
water  powers  thus  placed  under  state  control.  They  should  be  preserved  and 
held  for  the  benefit  of  all  the  people,  and  should  not  be  surrendered  to  private 
interests.  It  would  he  difficult  to  exaggerate  the  advantages  whicli  may  ulti- 
mately accrue  from  tiiesc  great  resources  of  power  if  the  common  right  is  duly 
safeguarded. 

After  referring  to  the  legislation  which  had  created  a  \\'ater  Supply 
Commission,  charged  with  duties  with  regard  to  potable  waters  and  river 
improvement,  1  added  : 

It  remains  to  be  considered  whether  it  is  not  advisable  to  provide  a  more 
comprehensive  plan,  embracing  in  a  clearly  defined  way  the  matter  of  water 


THE  STATE  ADMINISTRATION  28 1 

storage  and  the  use  of  water  courses  for  purposes  of  power.  The  entire  ques- 
tion of  the  relation  of  the  state  to  its  waters  demands  more  careful  attention 
than  it  has  hitherto  received,  in  order  that  there  may  be  an  adequate  scheme 
of  just  regulation  for  the  public  benefit. 

Pursuant  to  this  recommendation,  the  legislature  of  1907  directed  the 
State  Water  Supply  Commission  "  to  collect  information  relating  to  the 
water  powers  of  the  state  and  devise  plans  for  the  development  of  such 
water  powers,"  and  appropriated  ^35,000  for  the  purpose.  The  act  con- 
templated a  thorough  investigation  and  the  submission  of  accurate  infor- 
mation and  comprehensive  plans. 

The  commission  entered  zealously  upon  its  work  and  procured  com- 
petent expert  assistance.  In  February  last  it  made  a  valuable  preliminary 
report  in  which  the  general  phases  of  the  subject  were  presented  in  a 
most  interesting  and  instructive  manner : 

Excluding  Niagara  and  St.  Lawrence,  the  rivers  of  the  state,  with  the  proper 
storage  of  their  flood  waters,  are  capable  of  furnishing  at  least  i  ,000,000  horse 
power  for  industrial  purposes.  On  account  of  the  wide  difference  between  the 
minimum  and  maximum  flow  of  the  streams,  the  minimum  flow  being  the  real 
test  of  the  power  value,  at  least  55  per  cent  of  their  potential  energy  is  lost  to 
the  owners  of  water  rights  and  to  the  people  of  the  state.  It  is  clear,  therefore, 
that  550,000  horse  power  of  energy  is  annually  allowed  to  run  to  waste  because 
no  well-devised  and  comprehensive  plan  for  the  general  and  systematic  develop- 
ment of  water  power  has  yet  been  undertaken  by  the  state. 

At  a  low  estimate  the  advantage  of  water  over  steam  power  is  at  least  $  1 2 
per  horse  power  per  year.  The  annual  earning  capacity  of  the  wasted  energy, 
based  on  even  so  low  an  estimate,  is  $6,600,000.  Add  to  this  the  $1,000,000 
per  year  of  direct  damage  caused  by  floods,  and  the  indirect  damage  which  no 
one  has  yet  been  able  to  determine,  but  which  is  surely  equal  to  the  direct  dam- 
age, and  the  value  of  an  equalized  flow  during  the  summer  months  in  the  great 
rivers,  which  is  not  inconsiderable,  and  the  possibilities  to  be  derived  from 
proper  treatment  of  the  Niagara  and  St.  Lawrence,  and  the  aggregate  will  give 
some  idea  of  the  value  to  be  obtained  by  the  systematic  development  and  in- 
crease of  the  water  powers  of  the  state. 

The  rivers  of  the  state  are  and  have  been  open  to  inspection  by  every  one. 
The  locations  of  falls  and  power  sites  have  long  been  known  to  individuals, 
and  it  has  not  been  difficult  to  acquire  them.  Meantime  the  possibilities  of 
power  development  have  been  steadily  growing,  and  the  advantages  to  be 
gained  thereby  have  been  constantly  increasing.  It  is  not  strange,  therefore, 
that  farseeing  men  have  purchased  nearly  all  of  the  most  desirable  water  power 
within  the  state,  except  such  as  may  be  situate  along  the  boundary  rivers. 

Up  to  this  time  there  has  not  bee;n,  and  under  present  conditions  there  can- 
not be,  such  economical  and  general  development  of  water  power  by  private 
interests  as  will  include  the  storing  of  flood  water  on  a  scale  at  all  commen- 
surate with  the  advantages  to  be  gained  thereby.  It  is  from  this  method  that 
the  greater  amount  of  increase  is  to  come.  Moreover,  the  individual  or  corpo- 
ration that  invests  money  usually  does  so  in  the  hope  of  immediate  gain  — 
the  larger  the  immediate  profits  the  more  enthusiastic  the  promoter.  There 
is  therefore  the  temptation  to  cut  out  of  the  work  eveiything  that  can  be 


282  AMERICAN  STATE  GOVERNMENT 

postponed  or  avoided,  no  matter  how  essential  it  may  be  to  the  future  success 
of  any  well-considered  plan.  The  storing  of  flood  waters  will  provide  not  only 
power  development  at  the  site  of  the  dam,  but  will  also  increase  the  power  of 
every  user  down  the  stream.  The  fear  of  improving  the  plant  and  the  power 
of  a  competitor  might  well  restrain  an  owner  of  water  power  from  going  farther 
upstream  and  building  a  storage  dam  that  would  increase  the  value  of  his 
neighbor's  plant  as  well  as  his  own.  It  is  also  very  difficult  for  several  inter- 
ests to  combine  in  aid  of  such  a  project.  Even  though  they  should  be  willing 
to  engage  in  a  joint  enterprise  for  such  a  purpose,  there  would  be  still  the  lack 
of  power  to  condemn  land  for  storage  purposes  for  which  recourse  must  be 
had  to  the  lawmaking  body. 

The  United  States  census  of  manufactures  for  1905,  Bulletin  88,  shows  that 
of  the  1,647,969  horse  power  developed  by  water  in  the  United  States  for 
manufacturing  purposes,  446,134,  or  27^  per  cent,  was  used  in  the  state  of 
New  York.  This  is  more  than  twice  as  much  as  is  used  by  its  principal  com- 
petitor, the  state  of  Maine,  and  more  than  one  half  as  much  as  the  total  steam 
power  for  like  purpose  used  in  the  state.  The  increase  in  water  power  in  this 
state  from  1900  to  1905  was  over  100,000  horse  power.  This  rapid  increase 
in  so  short  a  period  is,  without  doubt,  one  of  the  causes  which  has  attracted 
the  attention  of  economists  to  the  value  for  the  state's  own  benefit  of  this 
branch  of  its  natural  resources. 

By  means  of  storage  dams  constructed  by  the  state  at  available  points,  in 
order  to  hold  back  the  flood  waters  of  many  of  our  large  rivers,  it  is  possible  so 
to  equalize  their  flow  as  to  more  than  double  the  available  horse  power  they 
now  produce.  Such  improvement  can  be  made  to  yield  a  revenue  that  will  not 
only  pay  the  cost  of  constructing  and  maintaining  the  dams,  but  that  also  will 
provide  a  large  income  for  the  state  for  all  time. 

The  commission  believes  that  through  the  building  by  the  state  of  storage 
dams,  thus  conserving  water  for  power  purposes,  five  distinct  advantages  will 
accrue : 

{a)  The  construction  of  such  dams  will  decrease  the  annual  damage  by  flood 
waters. 

{b)  It  will  assure  a  larger  minimum  flow,  which  will  improve  t^e  sanitary 
conditions. 

{c)  It  will  provide  a  deeper  channel  for  the  Hudson,  thus  improving  naviga- 
tion and  insuring  an  abundance  of  water  for  the  increasing  needs  of  the  canal. 

{d)  It  will  provide  cheaper  power  for  manufacturing  purposes,  and  by  stim- 
ulating various  industries  furnish  larger  fields  of  employment,  while  insuring 
uninterrupted  labor  in  already  existing  plants. 

{e)  It  will  provide  a  satisfactory  annual  income  to  the  state. 

Each  of  these  points  is  in  itself  worthy  of  the  careful  investigation  which  the 
legislature  has  directed  to  be  made. 

Controllable  power  is  the  vital  force  in  our  industrial  development,  and  one 
of  the  chief  elements  upon  which  civilization  is  based.  Manufactories,  trans- 
portation, and  artificial  light  are  largely  de]x-ndent  upon  it.  The  more  complex 
our  civilization,  the  more  intricate  our  manufacturing  enterprises  ;  and  the  more 
important  rapid  transit  becomes,  the  greater  our  dependence  upon  this  force. 
There  are  two  sources  of  power  available,  —  coal  and  falling  water.  Both 
require  skill  and  money  to  turn  their  latent  force  into  active  energy.  Coal 
once  used  is  gone,  but  water,  however  often  utilized,  returns  again.    Coal  is 


THE  STATE  ADMINISTRATION  283 

growing  less  plentiful  and  more  expensive,  while  water,  by  the  processes  of 
nature,  keeps  up  its  original  force  without  additional  cost. 

It  is  universally  conceded  that  the  use  of  falling  water  for  power  purposes  is 
much  more  economical  than  coal.  As  a  competition  becomes  more  acute  the 
value  of  water  power  over  steam  becomes  greater.  Cheap  power  must  continue 
to  be  a  vitally  interesting  subject  to  those  who  manufacture  goods,  provide  trans- 
portation, and  furnish  light.  The  discoveries  which  permit  the  carrying  of 
electrical  currents  a  long  distance  have  largely  increased  the  value  of  falling 
water  for  power  purposes.  Such  power  must  of  necessity  continue  to  grow  in 
value  as  new  opportunities  for  its  use  appear,  and  as  the  price  of  fuel  advances. 

This  is  a  plain  statement  of  an  almost  elementary  truth  with  which  all  who 
stop  to  consider  our  industrial  conditions  are  familiar.  This  economic  condi- 
tion is  attracting  attention  to  the  possibility  of  the  greater  use  of  falling  water, 
and  constitutes  a  summons  to  those  in  authority  to  provide  a  way  to  save  the 
lost  energy  that  is  annually  allowed  to  run  to  waste  in  our  rivers. 

For  years  nature  has  presented  the  spectacle  of  wasted  energy  in  water 
courses,  and  the  action  of  the  governor  and  legislature  in  directing  so  impor- 
tant a  work  as  the  conservation  of  this  wasted  power  meets  the  hearty  approval 
of  all  who  have  given  the  subject  serious  thought. 

The  commission  also  gives  the  results  of  preliminary  studies  in  differ- 
ent sections  of  the  state.  At  the  last  session  the  legislature  appropriated 
$75,000  for  further  investigations  by  the  commission,  and  it  is  confidently 
expected  that  as  a  result  of  its  work  there  will  be  an  important  develop- 
ment of  our  water  powers  and  their  conservation  for  the  benefit  of  all 
the  people  of  the  state. 

In  connection  with  this  it  may  be  noted  that  the  state  last  year  estab- 
lished a  precedent  of  requiring  proper  compensation  for  grants  of  power 
privileges  in  public  waters. 

Water-power  privileges  have  been  granted  in  the  past  without  any  pro- 
vision for  a  payment  to  the  state  in  return  for  what  the  state  gives.  These 
grants  have  frequently  been  made  without  proper  reservations  or  condi- 
tions, and  without  anything  constituting  a  suitable  consideration.  They 
have  amounted  simply  to  donations  of  public  rights  for  private  benefit. 
It  does  not  fetter  individual  enterprise  to  insist  upon  protection  of  the 
common  interest  and  due  payment  for  what  is  obtained  from  the  public. 
Last  year,  on  the  grant  of  a  franchise  to  a  development  company  which 
was  to  develop  power  from  the  St.  Lawrence  River,  it  was  insisted  that 
provision  should  be  made  for  compensation  for  the  privilege  upon  a 
sliding  scale  according  to  the  power  developed.  And  thus  it  was  estab- 
lished that  hereafter  in  the  state  of  New  York  public  privileges,  on  terms 
of  justice  to  the  investors  and  the  public  alike,  must  be  paid  for. 

The  conservation  of  our  resources  means  not  simply  their  physical 
preservation,  but  the  safeguarding  of  the  common  interest  in  the  bounties 
of  nature  and  their  protection  both  from  the  ruthless  hand  of  the  destroyer 
and  from  the  grasp  of  selfish  interest.  The  course  of  events  in  the  state 
of  New  York  during  the  past  few  years,  which  has  been  but  imperfectly 


284  AMERICAN  STATE  GOVERNMENT 

described,  is  full  of  encouragement  to  those  who  have  faith  in  the  capac- 
ity of  the  people  to  protect  their  just  concerns  and  to  secure  administra- 
tion which  places  the  general  welfare  above  every  consideration  of  mere 
private  advantage.  The  progress  in  the  state  of  New  York  to  this  end  is 
significant  of  the  healthy  growth  of  sentiment  which  the  meeting  of  this 
conference  cannot  fail  further  to  promote. 


FORESTRY  BY  THE  STATES  ^ 
By  Henry  S.  Graves 

The  work  of  the  states  in  forestry  conservation  consists  of  (i)  organ- 
ized fire  protection ;  (2)  establishment  of  state  forests,  especially  at  the 
headwaters  of  rivers ;  and  (3)  promotion  of  forestry  through  assistance 
to  private  owners  through  reasonable  taxation  and  education. 

For  a  long  time  there  have  been  in  many  states  laws  regarding  the 
setting  of  forest  fires.  These  laws  have  been  ineffective,  because  there 
has  been  no  public  sentiment  behind  them  and  no  adequate  organization 
to  enforce  them. 

In  recent  years  there  has  been  a  distinct  increase  in  the  activities  of 
the  states  in  legislation  looking  to  systematic  fire  protection.  Through 
good  laws,  properly  enforced,  many  causes  of  fire  may  be  eliminated. 
Carelessness  in  the  use  of  fires  in  clearing  land,  in  burning  brush,  in 
leaving  camp  fires,  in  smoking,  etc.,  may  be  largely  stopped.  Most  fires 
from  locomotives,  sawmills,  and  donkey  engines  are  not  necessary, 
because  there  are  practical  appliances  to  prevent  the  escape  of  sparks 
from  engines.  When  railroad  fires  occur  it  is  usually  because  the  best 
appliances  are  not  used  or  are  not  properly  used. 

Adequate  forest  protection  is,  however,  impossible  without  an  organi- 
zation to  enforce  the  laws  and  to  guard  against  fires.  Laws  designed  to 
establish  organized  fire  protection  have  been  enacted  in  the  following 
twenty-four  states  :  California,  Connecticut,  Colorado,  Idaho,  Louisiana, 
Maine,  Maryland,  Massachusetts,  Michigan,  Minnesota,  Montana,  New 
Hampshire,  New  Jersey,  New  York,  Ohio,  Oregon,  Pennsylvania, 
Rhode  Island,  South  Carolina,  Tennessee,  Vermont,  Washington,  West 
Virginia,  and  Wisconsin. 

As  a  rule,  these  states  have  a  system  of  local  fire  wardens  appointed 
by  the  counties  or  towns.  Their  duty  is  to  repair  to  any  fire  in  their 
respective  districts  and  extinguish  it.  Usually  the  wardens  have  the 
power  of  arrest  for  forest  misdemeanors,  and  may  impress  help  for 
fighting  fires.  The  organization  of  the  fire  wardens  varies  considerably 
in  different  states.    In  some  there  is  a  regular  department  of  forestry 

1  From  an  article  in  the  Rrvini'  nf  Reviews  on  "  The  Advance  of  Forestry  in  the  United 
States,"  April  ID.    Reprinted  by  permission. 


THE  STATE  ADMINISTRATION  285 

headed  by  a  state  forester,  who  has,  among  other  duties,  supervision  over 
the  fire  wardens.  In  other  states  this  work  is  in  charge  of  a  chief  fire 
warden.  Forest  Commission,  or  Fish  and  Game  Commission.  The  best 
results  are  obtained  by  having  a  technically  trained  state  forester,  who 
will  not  only  direct  the  work  of  the  fire  wardens,  but  have  supervision 
of  all  other  forestry  interests  in  the  state. 

One  of  the  chief  defects  in  most  of  the  fire  protective  systems  is  that 
they  provide  only  for  fighting  fires,  but  do  not  provide  for  a  systematic 
watching  of  the  forests  to  prevent  fires  from  starting.  The  idea  of  a 
systematic  patrol  has  recently  been  introduced  in  a  number  of  states. 
The  new  fire  law  of  New  York  makes  provision  for  the  patrol  of  the 
forests,  and  it  has  already  proved  successful. 

The  most  serious  handicap  in  fire  protection  and  in  other  state  work 
in  forestry  has  been  the  inadequacy  of  appropriations.  Success  in  fire 
protection  can  only  be  secured  by  close  organization  and  super\'ision  of 
the  force  of  fire  wardens.  This  has  been  prevented  in  most  states  by 
lack  of  funds.  For  this  reason  the  results  have  often  been  poor  com- 
pared with  what  might  be  secured  with  reasonable  further  expenditures. 

Another  important  feature  of  state  forestry  is  the  establishment  of 
state  forests.  Their  objects  are  to  protect  areas  which  should  be  kept 
under  forest  cover  for  the  regulation  of  stream  flow  and  the  prevention 
of  erosion,  to  furnish  a  demonstration  in  forest  management  for  private 
owners,  and  to  provide  an  assured  supply  of  timber.  New  York  takes 
the  lead  in  acreage  of  state  forests.  Its  reservations  aggregate  over  one 
and  one-half  million  acres,  and  the  policy  is  to  increase  the  acreage  ver)' 
largely.  The  state  has  a  vigorous  state  commission  and  a  competent  force 
of  foresters.  Pennsylvania  follows  wath  a  reservation  of  nearly  a  million 
acres.  Other  states  that  have  started  the  policy  of  acquiring  state  forests 
are  California,  Colorado,  Connecticut,  Indiana,  Maryland,  Massachu- 
setts, Michigan,  Minnesota,  New  Hampshire,  New  Jersey,  Tennessee, 
Vermont,  and  Wisconsin.  The  total  area  of  state  forests  now  approxi- 
mates two  and  three-quarter  million  acres. 

A  further  duty  of  the  states  is  to  enact  reasonable  laws  of  taxation. 
The  problem  of  taxation  is  being  studied  by  a  number  of  states  and  by 
the  national  government,  but  as  yet  little  progress  has  been  made  toward 
a  sane  and  uniform  system.  In  the  long  run  the  present  system  of  taxa- 
tion, if  continued,  will  contribute  directly  to  forest  destruction. 

The  states  should  help  private  owners,  not  only  by  aid  in  fire  protec- 
tion and  reasonable  taxation,  but  by  advice  given  through  the  state 
forester  as  to  the  best  practical  methods  of  forestr\\  There  is  a  large 
work  which  can  be  accomplished  by  the  states  in  general  educational 
work  in  forestry  and  in  scientific  research  and  experiment.  This  work 
locally  applied  would  be  along  much  the  same  lines  as  is  conducted  in  a 
broader  way  by  the  government. 


286  AMERICAN  STATE  GOVERNMENT 

PRESENT  SUPERVISION  OF  LIFE-INSURANCE 
COMPANIES,  ITS  MERITS  AND  DEFECTS^ 

By  S.  Herbert  Wolfe,  F.S.S. 

There  are  some  who  maintain  that  state  supervision  of  all  kinds  is 
merely  a  form  of  pernicious  paternalism.  Be  this  as  it  may,  we  are 
brought  face  to  face  with  the  fact  that  the  supervision  of  corporations 
is  becoming  more  extensive  day  by  day,  and  the  intention  of  the  govern- 
ment not  only  to  exercise  supervisory  functions,  but  to  participate  actively 
in  the  management  of  semipublic  corporations,  is  well  illustrated  by  the 
agitation  relative  to  railroad  rate-making.  Since  the  state  has  decided 
that  the  best  interests  of  its  citizens  are  served  by  requiring  its  physicians, 
its  dentists,  its  veterinarians,  and  even  its  barbers  (New  York  state  now 
requires  "  tonsorial  artists  "  to  pass  examinations  before  the  State  Licens- 
ing Board)  to  demonstrate  their  fitness  to  practice,  there  is  no  real  reason 
why  it  should  not  extend  its  protective  system  over  the  life-insurance 
policies  held  by  its  citizens.  In  fact,  there  exists  a  positive  reason  why 
it  should  do  so,  inasmuch  as,  life  insurance  being  based  upon  mathemat- 
ical and  scientific  principles,  its  essentials  are  beyond  the  knowledge  of 
the  average  man.  Were  a  banking  institution  to  offer  a  man  6  per  cent 
interest  upon  his  daily  balances,  he  would  realize  from  his  knowledge  of 
business  conditions  that  such  an  offer  was  inconsistent  with  proper  and 
conservative  banking  methods ;  in  consequence  he  would  decide  to  have 
nothing  to  do  with  an  institution  that  made  such  an  offer.  When  an  in- 
surance agent,  however,  offers  this  same  man  a  policy  of  insurance,  be 
is  unable  to  determine  whether  the  premiums  which  he  is  to  pay  are  ade- 
quate, or  whether  the  company  standing  back  of  the  contract  is  being 
conducted  along  safe  lines.  It  is  to  be  regretted  that  the  history  of  the 
past  twenty-five  years  in  this  country  indicates  that  mere  cheapness  has 
been  an  unduly  exaggerated  factor  in  the  mind  of  the  insuring  ])ublic. 
The  rise  of  assessment  organizations,  their  wonderful  and  unprecedented 
growth,  and  the  subsequent  failure  of  many  of  them,  owing  to  the  inad- 
equacy of  their  premiums  and  their  managerial  mistakes,  all  poini  to  the 
inability  of  the  average  citizen  to  select  safe  depositories  for  his  insurance 
premiums. 

The  state  has  a  vital  interest  in  the  successful  administration  of  life- 
insurance  companies.  They  are  encouragers  of  thrift ;  upon  the  death 
of  the  wage  earner  the  proceeds  of  the  insurance  policy  are,  in  many 
cases,  the  only  barrier  between  the  family  and  pauperism.  I'or  that  rea- 
son life  insurance  takes  its  place  in  the  economic  structure  and  occupies 
a  peculiar  niche,  for  it  not  only  encourages  habits  of  economy  and  com- 
pels periodic  deposits  of  money  (as  contrasted  with  the  voluntary  depos- 
its which  are  made  in  savings  banks),  I)ut  it  exercises  the  more  important 

1  Reproduced  from  North  American  Review,  July,  1905.    Reprinted  by  permission. 


THE  STATE  ADMINISTRATION  287 

function  of  distributing  the  losses  of  the  few  among  the  many.  It  has 
been  well  said  that  nothing  is  so  uncertain  as  the  date  of  the  death  of 
any  particular  individual,  and  nothing  is  more  certain  than  the  number  of 
individuals  who  will  die  in  any  given  year.  Insurance  eliminates  the 
hardship  which  would  be  occasioned  by  the  premature  death  of  the  in- 
dividual, in  such  a  way  that  each  of  the  contributors  pays  his  share  of  the 
mathematical  probability  of  his  death  during  the  given  period.  As  an  illus- 
tration of  the  recognition  by  the  state  of  this  peculiar  economic  relationship, 
it  may  be  pointed  out  that  in  Europe  we  find  a  system  of  compulsory 
governmental  insurance,  covering  not  only  death  from  all  causes,  but 
also  disability  from  accident  and  disease. 

It  may  not  be  uninstructive  to  show  by  a  few  concrete  illustrations 
the  extent  to  which  life  insurance  has  entered  into  the  everyday  life  of 
the  people.  The  United  States  leads  the  world  in  the  size  of  the  com- 
panies domiciled  within  its  borders.  Taking,  for  example,  the  records  of 
three  of  the  largest  companies,  we  find  that  at  the  end  of  the  last  calen- 
dar year  they  controlled  between  them  $1,242,731,113.35  of  assets. 
Now  bear  in  mind  that  an  insurance  company  is  not  a  productive  corpo- 
ration. It  receives  certain  moneys  ;  it  invests  them  ;  it  distributes  these 
funds  to  the  beneficiaries  of  the  policyholders  who  die  during  the  exist- 
ence of  their  contracts,  or  to  those  who,  by  their  survival  of  a  stated 
period,  are  entitled  to  such  participation.  The  corporation  itself  is  there- 
fore merely  a  collecting  and  distributing  bureau.  It  produces  nothing. 
It  is  the  receiver,  the  custodian,  the  investor  and  disburser  of  the  funds 
which  its  policyholders  pour  into  its  coffers.  These  remarks  are  equally 
true  either  for  the  life-insurance  company  with  a  capital  stock  or  for  one 
organized  absolutely  upon  the  mutual  plan.  In  the  former  case  there 
may  be  some  charter  or  statutory  provision  which  will  permit  the  stock- 
holders to  receive  certain  dividends ;  but  the  distinction  must  be  sharply 
drawn  between  the  capital  stock  of  a  life-insurance  company  and  that  of 
an  industrial  corporation,  for  in  the  latter  the  operations  are  conducted 
and  extended  by  means  of  the  contributions  of  the  stockholders,  while  in 
the  former  the  policyholders  contribute  the  assets. 

It  has  been  pointed  out  that  three  of  these  companies  alone  owned  on 
December  31,  1904,  nearly  $1,250,000,000  in  securities  of  various  kinds. 
This  great  sum  represents  the  contributions  of  individuals  scattered 
throughout  the  civilized  world,  and  numbering  at  that  time  2,158,749. 
The  foregoing  facts  have  apparently  been  lost  sight  of  in  the  reports  of 
the  internal  strife  in  one  of  these  corporations  which  have  recently  been 
so  prominent  in  the  daily  press.  Eminent  counsel  representing  the  vari- 
ous factions  among  the  officers  and  directors  have  used  all  of  their  talents 
to  secure  advantages  for  their  respective  clients ;  but  the  great  army  of 
policyholders,  the  real  owners  of  the  assets  of  the  institution,  are  a  dis- 
organized body  unable  to  protect  their  own  interests  properly.  The 
question  naturally  arises,  therefore,  Does  the  state,  after  bringing  these 


288  AMERICAN  STATE  GOVERNMENT 

corporations  into  being,  assume  no  responsibility  for  the  safeguarding 
of  the  interests  of  the  policyholders  ? 

State  supeA'ision  exists  in  every  countr)-.  In  Germany  the  government 
not  only  exercises  powers  of  visitation  and  supervision  over  its  insurance 
corporations,  but  actually  participates  in  the  management  of  their  affairs, 
specifies  the  mortality  tables  to  be  assumed,  the  commissions  which  may 
be  paid,  the  time  when  their  profits  shall  be  distributed  to  the  policy- 
holders, etc.  In  the  United  States  we  attempt  to  supervise  our  life- 
insurance  companies  by  means  of  insurance  departments  existing  in 
each  of  the  fifty-one  states,  territories,  and  districts.  These  supervisors, 
in  nearly  every  case,  are  appointed  by  the  governors.  In  a  very  few  in- 
stances (Delaware  and  Wisconsin,  for  example)  they  are  nominated  as 
are  other  state  officers  and  elected  by  direct  vote  of  the  people.  They 
have  various  titles,  usually  being  called  Superintendent  of  Insurance  or 
Insurance  Commissioner.  In  some  cases  the  auditor  of  state  is  insurance 
commissioner  ex  officio,  and  in  a  perfunctory  manner  combines  the  super- 
vision of  insurance  companies  with  that  of  state  banks,  savings  banks, 
building  and  loan  associations,  etc. 

It  will  be  seen  from  this  that  the  supervising  ofl[icer  is  part  of  the 
political  machinery  of  the  state,  and  the  besetting  sin  of  American  civic 
government  —  the  political  pull  —  is  responsible  for  whatever  lack  of 
efiiciency  there  may  be  in  this  important  branch  of  the  state  government. 
It  is  an  unfortunate  fact  that  this  office,  which  comes  into  such  close  and 
vital  relationship  with  the  interests  of  so  large  a  number  of  citizens, 
should  be  handed  out  as  a  reward  for  political  services.  It  must  not  be 
understood  that  this  is  a  sweeping  condemnation  of  all  insurance  depart- 
ments or  a  denunciation  of  every  insurance  commissioner,  for  some  have 
appreciated  the  importance  of  their  duties,  have  cast  off  all  political  yokes 
and  affiliations,  and  have  succeeded  in  reforming  serious  evils  which  ex- 
isted in  the  business.  It  is  merely  a  criticism  of  a  system  which  takes 
men  with  no  technical  education,  places  them  in  charge  of  one  of  the 
most  important  bureaus,  and  then,  without  regard  to  their  honesty,  effi- 
ciency, or  record,  sweeps  them  out  of  office  and  hands  their  positions  to 
some  new,  inexperienced  man  as  a  reward  for  political  services  rendered 
at  the  last  election.  This  condition  of  affairs  is  to  be  found  in  nearly 
every  state  in  this  country.  The  most  notable  exceptions  are  the  New 
England  states,  where  many  of  the  insurance  commissioners  have  been 
in  office  for  a  great  number  of  years,  and  are  thus,  by  their  experience, 
enabled  to  serve  the  interests  of  their  policyholders  with  fidelity  and  ability. 

The  method  of  appointing  or  electing  the  supei"vising  officer  has  been 
touched  upon  before  referring  to  the  statutes  themselves,  for,  no  matter 
how  good  or  how  bad  the  laws  are,  their  beneficial  effect  is  directly 
proportionate  to  the  efficiency  of  the  supervising  officer.  Given  a  state 
whose  statute  books  contain  a  set  of  ideal  insurance  laws,  but  whose 
supervising  officer  is  weak  and  inefficient,  and  it  will  be  found  that  the 


THE  STATE  ADMINISTRATION  289 

results  attained,  as  far  as  the  interests  of  the  policyholders  go,  are  inferior 
to  those  of  some  neighboring  state  whose  insurance  code  is  less  elaborate, 
but  where  the  supervising  officer  is  a  man  of  sterling  integrity,  imbued 
with  the  knowledge  of  the  importance  of  the  duties  assigned  to  him,  and 
determined  at  all  hazards  to  protect  the  interests  of  his  policyholders. 

The  duties  of  an  insurance  commissioner  are  threefold : 

First.  To  see  that  the  insurance  laws  of  his  state  are  obeyed. 

Second.  To  see  that  the  policyholders  receive  equitable  treatment  from 
the  corporations  under  his  supervision. 

Third.  To  see  that  the  corporations  receive  fair  treatment. 

The  insurance  laws  of  most  of  the  states  are  in  a  deplorable  condition. 
They  were  enacted  at  a  time  when  life-insurance  companies  had  not  at- 
tained their  present  growth,  and  consequently  are  inadequate  to  meet 
the  needs  of  the  present  conditions.  The  chief  points  of  regulation  which 
are  aimed  at  in  the  insurance  laws  may  be  briefly  summarized  as  follows  : 

(i)  The  establishment  of  a  standard  of  solvency  by  which  the  fnancial 
condition  of  the  organization  may  be  tested.  It  is  apparent  that  the  ascer- 
tainment of  the  outstanding  liabilities  of  an  insurance  corporation  is  a 
much  more  difficult  proposition  than  is  met  with  in  determining  the 
liabilities  of  any  other  financial  institution.  The  present  value  of  a  life- 
insurance  contract  is  dependent  not  only  upon  the  accumulation  of  interest, 
but  also  upon  the  operation  of  the  law  of  mortality.  A  life-insurance  com- 
pany may  have  more  than  enough  funds  on  hand  to  pay  all  of  its  accrued 
death  claims,  and  still  be  in  such  a  perilously  insolvent  condition  as  to 
render  its  further  operations  e.xtremely  hazardous.  The  principles  upon 
which  legal-reserve  insurance  companies  are  founded  contemplate  the 
establishment  of  a  sufficient  amount  in  the  early  years  of  the  history  of 
a  life  contract  to  overcome  the  deficiency  in  later  years  caused  by  the 
naturally  excessive  mortality  resulting  from  old  age.  It  is  absolutely 
necessar)'  that  a  company  should  have  sufficient  funds  on  hand,  available 
for  payment  in  the  future,  to  equal  the  present  value  of  these  contracts. 
The  state  therefore  prescribes  a  mortality  table  and  a  rate  of  interest 
which  may  be  applied  in  calculating  the  present  value  of  a  company's 
policy  contracts.  Companies  are  required  to  list  their  policies,  send  their 
lists  to  the  Insurance  Department  of  the  state  in  which  they  are  domiciled, 
and  the  actuarial  department  then  ascertains  the  liability  on  account  of 
such  contracts. 

(2)  Prescribing  the  investments  in  which  a  company  may  invest  its  funds. 
It  will  be  recognized  that  this  is  one  of  the  most  important  features  of 
supervision  ;  for  if  the  funds  of  a  life-insurance  company  be  invested  im- 
properly, the  entire  structure  must  fall  to  the  ground.  The  laws  of  nearly 
all  the  states  permit  companies  to  purchase  sufficient  real  estate  for  the 
conduct  of  their  own  business.  This  has  been,  by  practice,  construed  to 
permit  a  company  to  erect  a  large  office  building,  but  a  small  part  of 
which  is  occupied  for  its  own  operations.    It  goes  without  saying,  of  course, 


290 


AMERICAN  STATE  GOVERNMENT 


that  companies  are  permitted  to  take  title  to  such  real  estate  as  they  are 
compelled  to  acquire  under  foreclosure,  although  the  laws  of  many  of  the 
states  require  such  property  to  be  sold  within  a  given  time,  usually  five 
years,  unless  the  necessary  certificate  is  secured  from  some  state  officer 
setting  forth  that  a  forced  sale  would  result  injuriously  to  the  interests  of 
the  policyholders.  A  large  part  of  the  funds  of  insurance  companies  is 
invested  in  bond  and  mortgage  on  real  estate,  and  the  laws  Usually  pre- 
scribe that  such  real  property  shall  be  improved,  unincumbered,  and  worth 
50  per  cent  more  than  the  amount  loaned  thereon.  The  weak  part  of 
this  requirement  is  that  it  makes  no  provision  for  ascertaining  the  actual 
worth  of  the  property.    The  restriction  is  therefore  valueless. 

The  next  broad  subdivision  of  investments  is  the  bonds  and  stocks. 
The  statutes  of  a  state  in  which  are  located  large  insurance  interests  pro- 
vide that,  after  making  the  deposit  with  the  superintendent  of  insurance, 
the  residue  of  the  capital  and  the  surplus  money  and  funds  "  may  be  in- 
vested in,  or  loaned  on  the  pledge  of,  any  of  the  securities  in  which 
deposits  are  required  to  be  invested,  or  in  the  public  stocks  and  bonds  of 
any  one  of  the  United  States,  or,  except  as  herein  provided,  in  the  stocks, 
bonds,  or  other  evidence  of  indebtedness  of  any  solvent  institution  incor- 
porated under  the  laws  of  the  United  States,  or  of  any  state  thereof." 
Companies  are  not  permitted  to  loan  upon  or  own  the  stock  of  any  other 
insurance  corporation  transacting  the  same  kind  of  business.  It  will  be 
seen  at  once  that  the  field  of  investment  permitted  under  this  act  is  so 
broad  as  to  contain  practically  no  restrictions.  It  is  responsible  for  many 
of  the  evils  which  have  crept  into  the  business,  and  which  must,  in  the 
very  near  future,  be  remedied,  in  order  that  the  institution  of  life  insur- 
ance shall  occupy  its  legitimate  field.  It  was  never  intended  that  the 
funds  of  any  corporation  of  this  kind  should  be  used  for  the  purpose  of 
controlling  subsidiary  corporations  engaged  in  the  transaction  of  other 
forms  of  commercial  enterprises.  The  spectacle  of  insurance  companies 
owning  the  controlling  interest  in  the  stock  of  banks,  trust  companies, 
trolley  roads,  and  industrial  corporations  of  various  kinds,  is  neither  a 
pleasant  nor  a  reassuring  one.  The  evils  to  which  such  a  condition  of 
affairs  can  lead  have  been  given  great  prominence  in  recent  public  prints. 
If  the  supervision  of  insurance  companies  is  to  be  worth  an)thing,  it 
must,  in  the  very  near  future,  devote  its  serious  consideration  to  the 
establishment  of  more  rigorous  standards,  preventing  the  use  (or  misuse) 
of  the  policyholders'  contributions  for  personal  gain  or  aggrandizement. 
In  addition  to  the  foregoing,  companies  are  permitted  to  loan  to  their 
policyholders  an  amount  not  exceeding  the  reserve  which  is  maintained 
on  their  policies.  This  constitutes  one  of  the  safest  and  most  desirable 
investments  which  a  company  can  make.  It  is  hard  to  imagine  a  more 
thoroughly  secured  loan  than  one  of  this  character.  Should  the  policy- 
holder die,  the  loan,  by  its  terms,  immediately  becomes  due  and  pay- 
able, and  is  deducted  from  any  proceeds  which  are  turned  over  to  the 


THE  STATE  ADMINISTRATION 


291 


beneficiary.  It  is  dependent  for  its  security  upon  the  progress  of  no 
outside  institution.  It  can  never  be  repudiated,  as  have  been  the  bonds 
of  some  municipalities.  If  the  policyholder  permits  his  policy  to  lapse, 
the  company  is  amply  protected ;  for  it  has  in  its  possession  the  man's 
reserve,  which,  it  will  be  borne  in  mind,  is  the  excess  payments  which 
he  has  made  to  provide  for  the  maintenance  of  a  level  premium  through- 
out his  contract. 

(3)  The  ministerial  fiaidions.  Under  this  heading  comes  the  important 
duty  of  preparing  and  distributing  the  blanks  upon  which  the  companies 
are  required  to  render  an  annual  account  of  their  transactions  of  the 
previous  calendar  year.  The  development  of  this  blank  is  a  most  inter- 
esting one.  It  is  not  so  very  long  ago  that  a  primitive  form  then  in  use 
gave  practically  no  insight  into  the  true  condition  of  the  corporation. 
The  gradual  introduction  of  more  scientific  methods  and  of  a  more  de- 
tailed analysis  of  the  various  items  has  produced  a  statement  form  which 
enables  an  experienced  observer  to  obtain  a  fair  knowledge  not  only  of 
the  financial  condition  of  the  company  but  also  of  its  methods  of  oper- 
ation, its  expenses  of  management,  its  ability  to  keep  its  business  upon 
its  book,  etc.  It  may  be  interesting  to  know  that  the  last  blank  adopted 
by  the  National  Convention  of  Insurance  Commissioners  of  1902  sub- 
divided the  income  of  companies  under  twenty-seven  heads,  the  disburse- 
ments under  twenty-nine,  the  assets  under  twenty-seven,  and  the  liabilities 
under  twenty-four.  It  will  be  seen  from  this  that  a  fairly  comprehensive 
analysis  has  been  attempted. 

(4)  The poiver  of  visitation.  To  require  corporations  to  make  periodic 
reports  and  to  provide  for  no  way  of  verifying  such  reports  would  mani- 
festly be  ridiculous.  In  consequence  the  insurance  statutes  of  nearly 
every  state  provide  that  the  head  of  the  department,  or  somebody  selected 
by  him,  is  authorized  to  visit  the  office  of  any  insurance  company  trans- 
acting business  in  his  state,  for  the  purpose  of  making  an  examination 
of  its  condition  and  ascertaining  whether  the  laws  of  the  state  have  been 
strictly  complied  with,  and  whether  its  operations  give  indication  of  having 
been  conducted  along  conservative  lines.  There  is  no  more  important 
duty  intrusted  to  the  supervising  officer  than  is  this  one.  He  must  take 
all  of  the  necessary  precautions  to  assure  himself  that  the  property  which 
the  company  displays  for  his  inspection  is  owned  absolutely  by  it ;  that 
the  lists  of  policies  submitted  to  him  for  valuation  are  complete  and  in 
accordance  with  the  terms  of  the  contracts,  for  to  verify  the  assets  without 
looking  after  the  liabilities  would  be  worse  than  useless.  If  he  finds  that 
a  company  fails  to  pay  its  death  claims  promptly,  is  being  conducted  for 
the  benefit  of  its  officers  and  directors  rather  than  its  policyholders,  is 
developing  into  an  institution  whose  funds  are  used  for  the  promotion  of 
industrial  or  financial  enterprises  rather  than  in  the  field  of  legitimate  in- 
vestments, it  becomes  his  duty  to  attempt  to  correct  such  abnormal  con- 
ditions.  Publicity,  it  will  be  found,  is  the  greatest  corrective  of  corporate 


292  AMERICAN  STATE  GOVERNMENT 

evils,  and  every  policyholder  is  entitled  to  know  every  detail  which  directly 
affects  his  contract.  No  institution  conducted  along  safe  and  conservative 
lines  need  fear  the  searchlight  of  publicity. 

It  is  greatly  to  be  regretted  that,  in  the  past,  some  unscrupulous  com- 
missioners have  used  the  examining  statutes  of  their  state  as  a  means  of 
securing  pleasure  trips  around  the  country  at  the  expense  of  the  companies 
examined.  At  one  time  there  was  an  epidemic  of  this  pernicious  activity 
on  the  part  of  certain  men  temporarily  clothed  with  great  authority.  It 
is  practically  unheard-of  to-day.  The  responsibility,  however,  of  deter- 
mining whether  a  company  is  fit  to  transact  business  within  a  state  is 
one  which  is  placed  in  the  hands  of  every  commissioner.  He  is  not 
authorized  to  delegate  this  power  to  the  commissioner  of  any  other  state, 
and  it  becomes  the  duty,  therefore,  of  eveiy  conscientious  state  officer  to 
investigate  for  himself,  if  he  has  any  reason  to  believe  that  the  home 
department  is  incompetent  or  unwilling  to  make  the  proper  investigation. 

The  above  brief  re'sume  of  some  of  the  duties  of  the  head  of  an 
insurance  department  will  serve  to  indicate  the  great  responsibility  attach- 
ing to  the  office.  The  technical  nature  of  the  life-insurance  business,  its 
close  affiliation  with  the  financial  world,  and  the  great  number  of  citizens 
interested  in  its  successful  administration,  are  all  arguments  for  the  elim- 
ination of  the  political  nature  and  character  of  the  office.  The  judicial 
frame  of  mind,  so  necessary  to  the  proper  contemplation  of  the  problems 
arising  in  connection  with  supervision,  is  only  acquired  after  years  of 
practice  and  experience.  To  expect  a  man  trained  in  other  walks  of  life 
to  develop  suddenly  into  a  competent  supervisor,  is  to  ask  the  impossible. 
Life  insurance  is  a  huge  structure,  and  its  erection  must  be  watched  by 
competent  eyes.  If  the  foundation  be  placed  upon  shifting  sands,  if  the 
materials  entering  into  the  building  are  of  inferior  quality,  or  if  the  work 
of  upbuilding  is  conducted  improperly,  the  structure  will  fall  to  the 
ground,  bringing  desolation  and  ruin  to  great  numbers.  It  is  to  the  credit 
of  state  supervision  that  such  good  work  has  been  accomplished  with 
such  poor  tools.  With  the  full  realization  upon  the  part  of  the  people  of 
the  cost  to  them  of  the  failure  of  a  weak  and  pliable  commissioner  to  do 
his  duty,  may  we  not  hope  that,  before  another  decade  passes,  wc  shall 
see  the  office  stripped  of  its  political  nature  and  its  administration  in  the 
hands  of  men  equipped  by  education  and  training  to  protect  the  interests 
of  the  millions  of  policyholders  throughout  the  world .?  When  that  time 
comes,  the  funds  of  a  life-insurance  com])any  will  never  be  regarded  as  a 
means  whereby  one  group  of  financiers  may  ])rolit  at  the  cost  of  another 
group.  'I'he  title  to  the  funds  will  rest  securely  in  the  policyholders,  and 
the  only  thing  needed  to  effect  this  transformation  is  the  realization  upon 
the  part  of  tiie  policyholder  of  the  necessity  for  it. 


THE  STATE  ADMINISTRATION  293 

SEPARATION  OF  THE  SOURCES   OF  STATE  AND  LOCAL 

REVENUES  1 

By  T.  S.  Adams 

It  is  important  to  note  that  separation  of  state  and  local  revenues  has 
ceased  to  be  merely  an  end  in  itself,  and  has  taken  on  added  significance 
as  the  initial  step  of  a  thoroughgoing  reform,  "  We  are  justified,"  says 
the  recent  Missouri  Tax  Commission,  "  in  saying  that  this  separation  of 
the  sources  of  state  and  local  revenues  is  now  generally  recognized  as  the 
first  essential  step  in  any  enduring  tax  reform." 

The  second  step,  in  the  opinion  of  most  writers  and  tax  commission- 
ers who  have  recently  considered  this  subject,  is  the  so-called  "  home 
rule,"  or  "  local  option."  "  Separation,"  says  the  report  of  the  California 
Commission  (of  1906)  on  Revenue  and  Taxation  (p.  11),  "  establishes,  at 
once,  home  rule  in  matters  of  taxation."  And  so,  similarly,  the  report  of 
the  Missouri  Commission  of  1907  (p.  10)  :  "The  local  taxing  districts, 
the  counties  and  cities  of  the  state,  will  then  [when  separation  is  effected] 
have  practical  home  rule  in  matters  relating  to  taxation."  And,  "  as 
regards  the  question  of  adequate  local  revenue,  the  simplest  plan  indeed," 
as  Professor  Seligman  expresses  it,  "  is  to  have  a  separation  of  state  and 
local  taxation,  with  local  option  on  the  part  of  the  localities  to  tax  or  to 
exempt  from  taxation  whatever  classes  of  property  they  see  fit." 

From  these  expressions  it  would  appear  that  the  dual  program  of 
separation  and  home  rule  is  one,  primarily,  of  financial  decentralization. 
The  state  government  having  taken  over  most  of  the  fees  and  license 
taxes,  nearly  all  of  the  corporation  taxes,  and  perhaps  some  of  the  taxes 
on  personal  property,  in  addition,  of  course,  to  the  inheritance  tax,  blandly 
says  to  the  wondering  little  local  governments  gathered  about  the  mater- 
nal knee :  "  Now,  little  children,  you  are  free.  Go  your  way  and  I  shall 
go  mine.  I  shall  keep  the  taxes  and  revenues  just  mentioned,  and  you 
—  you  may  have  the  general-property  tax.  Considering  the  liberality 
of  the  division,  I  confidently  expect  you  to  be  able,  in  the  future,  to  get 
along  without  the  pernicious  and  demoralizing  tax  on  personal  property." 

This  thorough  divorcement  of  state  and  local  revenue  systems  is,  on 
the  surface,  exceedingly  attractive  to  almost  every  one.  The  economist 
looks  upon  it  with  favor  because  it  promises  the  abolition  of  the  personal- 
property  tax.  The  single  taxer  applauds  it  because  it  legalizes  the 
exemption  of  improvements  as  well  as  that  of  personal  property.  The 
business  man  approves  it  because  it  offers  a  means  of  securing  honor- 
ably and  openly  that  exemption  of  plant  and  stock  which  so  many  mer- 
chants and  manufacturers  at  the  present  time  are  securing  illicitly  and 
covertly.    Of  course  it  may  mean,  instead  of  exemption,  more  strenuous 

1  Read  at  the  National  Conference  on  State  and  Local  Taxation,  held  at  Columbus,  Ohio, 
November  12-15,  ^9°7>  under  the  auspices  of  the  National  Tax  Association. 


294  AMERICAN  STATE  GOVERNMENT 

attempts  to  assess  personal  property,  and  increasing  efforts,  in  most 
localities,  to  lighten  the  load  upon  real  estate  by  increasing  the  burden 
upon  business.  But  the  advocates  of  home  rule  are  willing  to  take  their 
chances.  The  program  of  reform  apparently  promises  greater  liberty  to 
everybody  concerned,  and,  as  consistent  Democrats,  they  properly  refuse 
to  be  frightened  by  the  fact  that  liberty  may  degenerate  into  license. 

Despite  its  attractions,  however,  I  believe  that,  on  the  whole,  the  pro- 
gram just  described  —  the  idea  of  complete  separation  of  state  and  local 
finances  with  fiscal  autonomy  in  each  sphere  —  is  impossible  of  realiza- 
tion and  retrogressive  in  direction,  making  away  from  and  not  toward 
the  real  solution  of  our  most  important  problems.  I  believe  that  real 
progress  lies  in  the  direction  of  centralization,  not  decentralization,  of  fiscal 
control.    The  reasons  for  this  statement  must  be  discussed  in  some  detail. 

I.  In  the  first  place,  separation  and  home  rule  cannot  materially 
increase  the  positive  fiscal  freedom  of  the  local  governments.  It  is  doubt- 
ful whether  they  can  safely  be  permitted  to  exempt  any  class  of  property 
they  desire  to  relieve  from  taxation  ;  but  it  is  perfectly  plain  that  they  can- 
not be  allowed  to  devise  new  taxes.  Take  the  income  tax,  for  example. 
Not  only  would  it  be  impossible  for  a  local  government  to  administer  the 
income  tax  without  the  right  to  call  upon  other  officers  of  the  state  for 
information  and  assistance,  but  the  difficult  definitions  and  interpretations 
of  income  which  the  various  local  governments  might  introduce  would 
bring  about  an  intolerable  amount  of  multiple  taxation.  Or  take  the 
much  more  feasible  project  of  license  or  business  taxes  upon  commercial 
and  manufacturing  concerns  in  lieu  of  the  present  taxes  upon  plant  and 
stock.  The  various  local  districts  of  a  state  could  never  be  permitted  to 
define  and  manipulate  such  taxes  as  they  might  see  fit.  Suppose  a  man- 
ufacturing concern  had  its  factory  and  warehouse  in  village  A  and  its 
principal  office  and  salesroom  in  city  B.  The  village  might  impose  the 
present  property  tax  on  plant  and  stock,  while  the  city  might,  by  adoi)t- 
ing  some  plan  of  apportioning  the  total  capital  value  of  such  concerns 
according  to  business  done  or  gross  income,  tax  practically  all  of  this 
property  again  in  another  way.  Furthermore,  the  local  governments 
could  not  safely  be  permitted  to  tax  individual  categories  of  personal 
pro])crty  as  they  saw  fit.  'I'ake  mortgage  taxation.  Oounty  A  might 
institute  a  recording  tax  and  county  B  the  separate  taxation  of  mortgages 
as  personal  property.  Yet  an  individual  mortgagee  residing  in  B  might 
lend  his  money  in  county  A,  with  the  result  that,  whether  mortgagee  or 
mortgagor  ultimately  paid  the  tax,  it  would  be  double  or  multij^lc  taxa- 
tion of  the  most  vicious  kind.  In  general,  it  is  a  safe  conclusion  that  the 
income  tax,  business  taxes,  anrl  all  manner  of  ad  \alorcin  assessment  in 
the  si)irit  of  the  .so-called  unit  rule  would  have  to  be  denied  the  local  gov- 
ernments under  the  scheme  of  home  rule.  With  the  growing  and  com- 
mendable practice  of  distributing  the  intangible  values  of  going  concerns 
in  accordance  with   their  business  or  tangible  property,  it  is  doubtful 


THE  STATE  ADMINISTRATION 


295 


whether  even  the  method  of  assessing  tangible  property  can  be  left  to 
the  discretion  of  the  local  governments.  The  opportunities  for  double 
taxation  are  too  manifold.  While  the  habitation  or  occupancy  tax  might 
safely,  perhaps,  be  left  to  the  local  governments  (although  even  this  is 
problematical),  most  of  the  possible  substitutes  for  the  personal-property 
tax  can  be  introduced  only  as  state  taxes.  As  a  matter  of  fact  it  is  prob- 
able that  the  average  legislature  will  never  permit  the  local  governments 
to  bid  against  each  other  for  the  location  of  manufacturing  concerns, 
although  the  pros  and  cons  of  this  particular  scheme  seem  to  be  evenly 
balanced.  In  other  words,  the  tax  laws  for  the  local  districts  will  always 
have  to  be  made  by  the  state  legislature. 

Evidently,  then,  the  phrase  "  home  rule  "  does  not  mean  exactly  what 
the  words  imply.  We  want  the  local  governments  to  have  the  liberty  to 
exempt  personal  property,  but  we  do  not  want  them  to  have  liberty  to 
tax  corporations  as  they  please.  We  are  advocating  freedom  when  what 
we  want,  or  at  least  the  only  thing  we  can  have,  is  another  kind  of  con- 
trol. What  we  need  is  not  less  state  regulation  in  the  matters  of  local 
taxation,  but  more  intelligent  state  regulation. 

II.  Not  only  is  centralization  a  good  thing,  but  we  are  getting  more 
centralization  every  day.  If  we  examine  the  forward  movement  which 
has  resulted  in  partial  or  complete  separation  in  several  of  our  most 
progressive  commonwealths,  we  find  that  it  was  aimed  primarily  at 
the  reform  of  corporation  taxation,  and  achieved  separation  incidentally, 
largely  as  a  by-product.  (Wisconsin,  for  instance,  has  ceased  to  levy  prop- 
erty taxes  for  the  support  of  the  state  government,  but  there  has  been 
no  popular  demand  for  separation  in  Wisconsin,  practically  no  discussion 
of  the  subject,  and  little  attention  paid  to  it.)  Corporation  taxation  under 
the  old  re'gime,  when  controlled  by  the  local  governments,  had  proved  a 
striking  failure ;  the  assessment  of  such  corporations  had  to  be  central- 
ized, and  in  the  process  of  centralization  the  state  retained  many  corpo- 
ration taxes  simply  because  it  was  difficult  to  apportion  corporate  values, 
for  purposes  of  taxation,  among  the  various  local  districts.  These  corpo- 
ration taxes  proved  so  lucrative  in  many  cases  that  it  became  practicable 
to  discontinue  the  levy  of  state  property  taxes. 

Now  there  is  just  one  element  common  to  this  movement  in  practically 
all  states.  It  is  not  the  separation  of  state  and  local  revenues.  Many 
advanced  states,  Massachusetts  for  instance,  are  not  yet  within  striking 
distance  of  separation.  Neither  is  it  the  complete  retention  of  corpora- 
tion taxes  by  the  state.  The  one  characteristic  of  the  advance  movement 
which  is  always  and  everywhere  found  is  centralization  of  the  assessment 
power.  The  most  striking  characteristic  of  the  past  has  been  the  decen- 
tralization of  the  administrative  machinery  of  taxation.  The  most  striking 
feature  of  the  present  is  the  universal  and  rapid  progress  toward  central- 
ization of  fiscal  control.  And  the  banner  of  reform  is  being  carried  by 
the  State  Tax  Commission. 


296  AMERICAN  STATE  GOVERNMENT 

It  is  unnecessary  to  discuss  in  detail  the  evolution  of  the  permanent 
Tax  Commission.  At  the  present  time  permanent  commissions  exist  in 
at  least  eight  states,  and  scarcely  a  year  passes  without  the  creation  of  a 
new  commission.  As  the  number  of  such  commissions  increases  their 
functions  are  multiplied.  At  first  they  did  little  more  than  assess  a  few 
important  classes  of  corporations.  Gradually  new  duties,  broader  powers, 
were  added ;  they  were  instructed  to  provide  uniform  blanks  for  local 
assessments,  to  assist  or  actually  to  make  state  equalizations,  to  inspect 
and  criticize  the  work  of  local  assessors,  to  revise  county  equalizations, 
and  order  reassessments  of  property.  To-day  the  tax  commissions  of 
seven  states  are  empowered  to  institute  proceedings  for  the  removal  of 
inefficient  assessors ;  in  seven  states  they  are  authorized  to  add  property 
to  the  assessment  rolls  or  to  order  the  reassessment  of  particular  parcels 
of  property ;  in  four  states  they  may  order  the  reassessment  of  entire 
districts ;  and  in  six  states  they  are  authorized  to  renew  and  readjust  the 
county  equalizations.  It  requires  no  unwarranted  stretch  of  the  imagina- 
tion to  foresee  a  time  when  the  whole  machineiy  of  local  and  state  assess- 
ment, in  the  more  advanced  American  commonwealth,  will  be  coordinated 
and  correlated  under  the  control  of  a  high-grade  pemianent  tax  commis- 
sion ;  when  a  permanent  corps  of  expert  assessors,  holding  office  during 
good  behavior  and  absolutely  divorced  from  politics,  will  banish  from 
American  administration  and  American  politics  the  miserably  inefficient 
local  assessor.  It  is  because  I  see  in  the  present  program  of  separation 
and  home  rule  the  potential  beginnings  of  a  countermovement  to  this 
centralization  of  assessment,  which  seems  to  me  so  supremely  important, 
that  I  take  upon  myself  the  unpleasant  task  of  scrutinizing  so  critically 
the  possibilities  of  a  program  with  which,  in  the  main,  I  am  in  hearty 
sympathy.  If  home  rule,  local  option,  and  fiscal  decentralization  militate 
in  any  important  way  against  the  reform  of  the  local  assessment  work, 
they  are  not  worth  the  cost. 

III.  The  position  just  taken  —  the  proposition  that  separation  should 
be  judged  accordingly  as  it  strengthens  or  weakens  the  character  of  the 
assessment  work  of  the  state  —  may  be  regarded  as  the  central  thesis  of 
this  paper,  and  the  remainder  of  my  time  will  be  devoted  to  the  consider- 
ation of  a  somewhat  miscellaneous  group  of  topics  bearing  upon  this  point. 

First  of  all  1  desire  to  recall  to  your  attention  the  very  familiar  and  ex- 
ceedingly important  fact  that,  measured  in  dollars  and  cents,  the  work  of 
the  local  assessors  is  far  and  away  the  most  important  part  of  our  fiscal 
system.  Compared  with  the  general-property  tax,  corporation  taxes,  in- 
heritance taxes,  and  all  the  other  taxes  put  together  pale  into  insignificance. 
In  1902  more  than  three  fourths  of  all  the  general  revenues  of  the  state 
and  local  governments  came  from  taxes  upon  general  property,  and  if 
the  state  taxes  levied  upon  general  properly  in  that  year  had  all  been  se- 
cured in  some  other  way  —  say  by  subventions  from  the  federal  govern- 
ment —  even  then  two  thirds  of  the  aggregate  general  revenues  of  the 


THE  STATE  ADMINISTRATION  297 

state  and  local  governments  would  have  been  raised  by  local  taxes  upon 
general  property.  Whether  we  keep  or  discard  the  taxation  of  personal 
property,  the  local  assessor  will,  for  many  generations,  continue  to  play 
the  principal  role  in  the  work  of  state  finance,  and  upon  his  probity  and 
efficiency  will  depend  the  real  success  or  failure  of  our  fiscal  system. 

Now  in  recent  years  the  statement  has  frequently  been  made  that  sep- 
aration itself,  carrying  with  it  the  cessation  of  state  taxation  upon  general 
property  and  the  abolition  of  the  state  equalization,  would  prove  the  most 
effective  means  of  improving  the  work  of  the  local  assessors.  The  report 
of  the  California  Commission  on  Revenue  and  Taxation  is  particularly 
enthusiastic  on  this  point : 

If  there  were  no  state  tax  to  be  apportioned  among  the  counties,  on  the 
basis  of  local  assessed  valuation,  there  would  be  no  object  or  inducement  to 
the  assessor  or  to  the  citizens  of  the  county  to  obtain  a  low  valuation.  In  fact, 
there  would  be  more  inducements  to  the  assessor  to  assess  the  property  as 
nearly  as  possible  at  its  full  market  value  in  order  to  avoid  inequalities  between 
the  citizens  among  his  own  constituents,  and  to  protect  himself  against  the 
charge  of  favoritism.  The  probability  is,  that  in  order  to  enjoy  the  advertising 
effect  of  a  low  tax  rate  the  great  inclination  would  be  for  the  assessor  to  raise 
the  valuation  rather  than  reduce  it.  A  high  tax  rate  is  bad  advertisement  for 
a  city  or  a  county,  and  if  there  is  no  state  tax  to  be  imposed  upon  the  same 
valuation,  the  county  could  have  the  advantage  of  the  low  rate  by  the  simple 
process  of  raising  the  assessed  valuation  from  its  present  level  of  about  50  or 
60  per  cent  to  its  full  value  (pp.  62,  63). 

With  this  interpretation  of  the  probable  effect  of  separation  I  find  my- 
self wholly  unable  to  agree.  The  influences  or  factors  responsible  for  in- 
efficient assessment  work  are  so  numerous  that  the  desire  to  evade  state 
taxes  is  really  a  negligible  consideration.  Enumerate  these  factors  :  first, 
the  inherent  difficulties  of  the  task  ;  next,  the  political  atmosphere  in 
which  the  assessor  too  often  works ;  then  the  insufficient  time,  insuffi- 
cient pay,  desire  to  evade  county  taxation,  desire  to  favor  personal  friends 
and  political  associates,  —  enumerate  these  factors,  and  it  is  plain,  with- 
out reference  to  experience,  that  the  mere  discontinuance  of  state  taxation 
of  general  property  can  work  no  appreciable  improvement.  If  reference 
to  experience  is  needed,  I  can  only  say  that  the  practical  separation 
accomplished  in  Wisconsin  has  not,  in  the  opinion  of  those  best  qualified 
to  judge,  exerted  any  appreciable  influence  upon  the  character  of  the 
assessment  work.  There  is  the  same  old  struggle  over  the  county  equal- 
ization, the  same  old  strife  between  city  and  county,  the  same  old  scram- 
ble of  the  individual  taxpayer  to  get  from  under  the  local  assessment. 

How  could  it  be  otherwise  ?  Of  the  general  property  taxes  —  $706,- 
660,244  in  all  —  collected  in  this  country  in  1902,  only  $83,320,134,  or 
1 1.6  per  cent,  went  to  the  state  governments,  while  $624,340,110,  or 
88.4  per  cent,  went  to  the  counties,  cities,  and  other  local  divisions. 
These  figures  furnish  a  good  measure  of  the  part  which  the  desire  to 


298  AMERICAN   STATE  GOVERNMENT 

escape  state  taxes  plays  in  demoralizing  local  assessors.  The  counties 
alone  collected  nearly  75  per  cent  more  under  the  general-property  tax 
than  the  states.  If  the  state  governments  should  abandon  the  $83,320,- 
184  which  they  are  now  (or  were  in  1902)  levying  on  general  property, 
there  would  still  remain  $624,340,110  to  be  distributed  and  equalized 
among  the  taxpayers  of  the  local  divisions.  For  the  state  government 
to  abandon  this  greater  task  of  equalization  is  a  cowardly  evasion  of  its 
chief  duty. 

Another  current  impression,  which  I  believe  to  be  similarly  erroneous, 
is  the  idea  that  if  the  personal-property  tax  is  abolished,  the  assessment 
of  real  estate  will  be  on  the  whole  equitable  and  satisfactory.  "  The  local 
taxation  of  real  estate,"  says  the  recent  Special  Tax  Commission  of  the 
state  of  New  York  (p.  6),  "  is  now  on  the  whole  free  from  any  serious 
objection."  This  may  be  true  of  New  York,  but  it  is  certainly  not  true 
of  most  American  states,  and  cannot  become  true  so  long  as  assessors 
are  selected  according  to  prevailing  practices,  and  work  under  present 
conditions.  During  the  past  four  years  I  have  devoted  a  large  part  of 
my  time  to  an  intimate  study  of  real-estate  assessments,  in  a  state  in 
which  the  quality  of  the  assessment  work  is  rather  above  than  below  the 
average.  During  that  time  I  have  compared,  in  the  case  of  several  hun- 
dred thousand  parcels  of  real  estate,  the  true  value  as  determined  by 
actual  sale  with  assessed  value  as  determined  by  the  local  assessors.  The 
deliberate  conviction,  forced  upon  me  by  this  examination,  is  that  the 
real-estate  assessment  is,  on  the  whole,  a  marked  failure  from  the  stand- 
point of  equality.  In  assessment  districts  in  which  the  average  ratio  of 
assessed  to  true  value  is  maintained  consistently  at  65  or  70  per  cent, 
individual  parcels  will  be  assessed  all  the  way  from  20  to  120  per  cent 
of  true  value.  We  talk  glibly  about  the  ease  with  which  real  estate  can 
be  assessed.  The  truth  is,  that  it  is  a  task  which  challenges  the  highest 
skill  of  bona  fide  experts.  Think  of  the  speculative  uncertainty  of  the 
value  of  farm  lands  adjoining  city  suburbs  ;  the  baffling  variety  of  fixed 
plant  and  machinery  ordinarily  assessed  as  real  property ;  the  problem 
thrust  upon  the  county  assessor  by  the  presence  in  some  small  village  of 
one  or  two  manufacturing  plants  of  whose  value  only  an  expert  of  long 
experience  in  that  particular  industry  can  furnish  any  estimate ;  and  I 
think  you  will  agree  with  me  that  the  problem  of  assessing  real  estate 
efficiently  cannot  be  left  to  the  local  assessors,  that  it  demands  expert 
treatment  which  only  the  general  government,  by  dealing  with  such 
problems  in  a  wholesome  way,  can  afford  to  provide. 

Finally,  I  desire  to  call  attention  to  the  fact  that  separation  does  not 
really  abolish  the  state  equalization  nor  prevent  the  distribution  of  the 
burden  of  state  taxation  among  the  various  local  divisions.  What  sepa- 
ration actually  docs  is  to  substitute  for  a  conscious  disti'ibution  of  state 
burdens  in  accordance  with  the  value  of  ])roperty,  an  unconscious,  un- 
seen, and  more  or  less  haphazard  distribution,  which  shifts  the  burden  we 


THE  STATE  ADMINISTRATION 


299 


know  not  where,  and  avoids  the  evil  of  faulty  equalization  according  to 
property  by  flying  to  other  ills  we  know  not  of.  Like  the  ostrich  in  the 
thunderstorm,  we  stick  our  heads  in  the  sand  and  stoutly  maintain  that 
it  is  not  raining. 

Consider  the  proposition  a  moment  and  it  will  cease  to  be  merely 
fanciful.  Ordinarily  separation  can  only  be  realized  by  the  state's  reten- 
tion of  the  more  important  corporation  taxes.  Some  of  the  corporations 
involved,  or,  more  accurately,  some  of  the  taxable  corporate  values  in- 
volved, like  trust  companies  in  New  York,  might  with  equal  propriety,  in 
whole  or  in  part,  be  assigned  to  the  local  governments  for  taxation ;  and 
when  they  are  not  so  assigned,  such  local  divisions  bear  pro  tanto  the 
burden  of  supporting  the  state.  And  other  things  being  equal,  assign- 
ment to  the  local  divisions  should  be  the  rule  and  not  the  exception. 
Unless  there  is  no  natural  relation  between  property  or  business  and  the 
expenses  of  government,  there  is  2i  prima  facie  presumption  in  favor  of 
local  taxation ;  and  this  initial  presumption  is  indefinitely  strengthened 
by  the  enormous  fiscal  burdens  under  which  our  municipalities  are  now 
staggering.  For  it  is  probably  true,  although  I  speak  with  hesitancy  on 
this  point,  that  separation  as  it  is  ordinarily  achieved  considerably  increases 
the  burden  of  the  city  governments,  in  the  sense  that  the  cities  would 
probably  receive  the  major  portions  of  such  corporate  values  if  they  were 
localized  according  to  the  best  principles  of  apportionment. 

Many  persons  will  commend  separation  for  this  very  reason,  on  the 
ground  that  the  enormous  escape  of  personality  in  the  cities  makes  the 
latter  fit  recipients  of  increased  state  taxation.  But  I  believe  this  conten- 
tion is  unsound.  It  loses  sight  of  the  stupendous  social  tasks  thrust 
upon  our  cities  by  the  mere  growth  of  population.  City  government,  to 
a  large  extent,  is  characterized  by  what  the  economists  call  the  law  of 
increasing  costs.  KvA  it  loses  sight  of  the  still  more  important  fact,  that 
shifting  a  larger  load  of  state  taxes  upon  the  city  communities  is  not 
going  to  get  the  extra  load  on  the  shoulders  of  the  men  who  evade  the 
personal-property  tax.  In  short,  it  fails  to  improve  the  distribution  of 
taxes  between  man  and  man  in  the  city. 

Moreover,  it  is  not  only  corporation  taxes  which  the  state  governments 
have  monopolized.  The  largest  source  of  state  revenue  in  New  York  is 
the  liquor  license ;  there  would  be  no  difficulty  in  assigning  that  revenue 
to  the  appropriate  local  divisions.  The  second  most  productive  source  of 
state  revenue  in  Pennsylvania  is  the  tax  or  group  of  taxes  on  personal 
property.  Are  its  burdens  distributed  among  the  local  districts,  and  if  so, 
is  the  distribution  more  or  less  equitable  than  that  which  would  be  ac- 
complished by  a  conscious  state  equalization  .''  In  order  to  separate  the 
sources  of  state  and  local  revenue  in  California,  the  Commission  on  Rev- 
enue and  Taxation  of  that  state  proposes  that  the  central  government 
shall  retain,  in  addition  to  the  poll,  inheritance,  and  insurance-premium 
taxes,  all  taxes  upon  steam  and  street  railways  ;  express  companies ;  car 


300  AMERICAN  STATE  GOVERNMENT 

companies ;  light,  heat,  and  power  companies ;  telegraph  and  telephone 
companies ;  the  corporate  excess  of  banks ;  and  all  corporate  franchises 
not  covered  by  the  above  taxes.  Unless  the  presence  of  property  at  a 
place  has  no  connection  with  the  public  expenditures  of  that  place,  unless 
the  right  to  exploit  the  commercial  opportunities  of  that  place  creates  no 
obligation  to  pay  taxes  at  that  place,  unless  the  Adams  Express  case  is 
moonshine  and  the  principle  of  the  Ford  Franchise  Law  a  delusion,  then 
street-car  companies,  heating  and  lighting  plants,  most  banks,  and  some 
telephone  companies  owe  most  of  their  fiscal  allegiance  to  fairly  well- 
defined  local  districts  ;  and  when  these  local  districts  are  deprived  by  the 
state  of  the  power  of  taxing  such  corporations,  they  are  saddled  with 
burdens  of  state  taxation  which  belong  elsewhere.-"^  The  unseen  equali- 
zation involved  in  separation  is  a  very  real  phenomenon.  Certain  it  is 
that  no  state  legislature  should  decide  to  separate  the  sources  of  state  and 
local  revenues  without  clearly  understanding  that  under  any  scheme  the 
expenses  of  the  state  government  must  be  distributed  in  some  way  among 
the  various  local  divisions,  nor  without  satisfying  itself  that  the  new  dis- 
tribution of  state  burdens  proposed  will  be  more  equitable  than  the  old. 

The  practical  conclusions  which  I  would  derive  from  the  preceding 
discussion  may  be  formulated  in  the  following  statements  : 

(i)  The  state  legislature  should,  in  my  opinion,  without  reference  to 
the  local  divisions  and  without  respect  for  impossible  plans  of  local  fiscal 
democracy,  abolish  the  personal-property  tax  and  introduce  a  substitute 
therefor,  if  one  can  be  devised. 

(2)  If  this  is  impracticable,  they  should  introduce  at  once  some  scheme 
of  limited  local  option  which  will  permit  particular  districts  to  abolish  that 
fiscal  abomination,  the  personal-property  tax.  No  plan  should  be  enter- 
tained, however,  which  will  interfere  with  central  suspension  of  assess- 
ments and  central  control  over  county  equalizations. 

(3)  This  carefully  limited  measure  of  local  option  should  be  introduced 
without  reference  to  the  separation  of  state  and  local  revenues. 

(4)  Similarly,  the  question  of  what  sources  of  revenue  should  be  re- 
tained by  the  state  ought  to  be  settled  absolutely  on  its  merits  without 
reference  to  home  rule,  by  a  careful  study  of  tax  jurisdictions  and  the 
connection  between  property  or  business  and  the  expenses  of  local  gov- 
ernment. Doubtful  points  should  be  decided  in  favor  of  the  local  juris- 
dictions, and  equitable  apportionment  should  not  be  strained  one  inch  in 
order  merely  to  supply  the  state  with  revenue  enough  to  get  along  with- 
out the  levy  of  direct  property  taxes.  If,  after  the  apportionment  of 
sources  between  state  and  locaf  governments,  the  state  has  not  sufficient 
special  revenue  to  pay  its  expenses,  let  the  deficit  be  raised  by  a  state 
tax  upon  real  estate,  including  in  real  estate  the  corporate  and  commercial 

1  The  California  plan  is  cited  merely  for  illustrative  purposes,  and  not  with  the  idea  of 
criticizing  the  California  Commission.  Under  ordinary  circumstances  such  a  division  of 
revenues  seems  manifestly  unjust. 


THE  STATE  ADMINISTRATION  301 

values  assigned  to  the  local  governments.  The  evils  of  an  equalization 
based  upon  real  estate  are  less  than  the  evils  of  the  unconscious,  hap- 
hazard equalization  involved  in  the  retention  by  the  state  of  a  number  of 
revenues  which  more  logically  belong  to  the  local  divisions. 

(5)  Finally,  I  assert  with  some  confidence,  that  if  the  equalization  is 
confined  to  real  estate,  and  if  it  is  made  by  an  efficient  tax  commission 
which  takes  its  work  seriously,  it  is  not  a  curse  but  a  blessing.  In  the 
first  place,  the  payment  of  some  direct  state  tax  stimulates  the  interest 
of  the  citizen  in  the  expenditures  of  the  state  government.  In  the  second 
place,  the  equalization  can  be  made,  with  all  necessary'  accuracy,  so  ac- 
curately in  fact  that  no  fair-minded  person,  after  studying  thoroughly  the 
conditions  of  the  problem,  will  question  its  substantial  accuracy  as  be- 
tween county  and  county.  It  can  be  made  without  prohibitive  expense ; 
it  is  not  necessary,  as  is  sometimes  asserted,  to  reassess  ever}-  parcel  of 
real  estate  in  the  commonwealth  to  get  at  the  truth.  And  in  gathering 
the  data  upon  which  to  base  its  conclusions,  the  Tax  Commission  will 
obtain  indispensable  information  concerning  local  assessment  work,  be- 
sides securing  material  absolutely  necessary  for  the  proper  performance 
of  the  work  of  county  equalization.  The  county  equalizations  are,  in  the 
aggregate,  more  important  than  the  state  equalization ;  but  at  the  present 
time  they  are  woefully  inaccurate.  The  county  officials  who  make  these 
equalizations  are,  as  a  rule,  destitute  of  reliable  data  upon  which  to  base 
their  apportionments,  and,  like  the  local  assessors,  they  will  never  do  their 
work  efficiently  until  they  are  forced  to  do  so  by  central  supervision  and 
state  aid.    Reform  in  these  matters  must  come  from  without. 


STATE  SUPERVISION  OF  LOCAL  FINANCE  ^ 

By  John  A.  Fairlie 

Mr.  Bryce  cites  as  one  of  the  merits  of  our  federal  system  of  govern- 
ment, that  the  separate  states  can  try  experiments  in  legislation  and 
administration,  and  that  other  states  profit  by  the  experience  of  those 
who  first  introduce  new  methods.  Both  of  these  statements  can  be  sup- 
ported by  important  evidence  ;  but  the  benefits  derived  in  this  way  have 
been  much  less  than  they  might  have  been,  owing  to  the  lack  of  means 
for  bringing  the  results  of  experiments  in  one  state  to  the  attention  of 
other  states.  This  association  can  in  some  measure  supply  this  need,  and 
reduce  the  enormous  waste  in  experimental  legislation,  by  furnishing  a 
clearing  house  for  the  interchange  of  notes  on  the  work  of  the  various 
states.  And  this  paper  is  a  small  contribution  in  that  direction,  calling 
attention  to  some  significant  legislation  in  a  number  of  states,  and  show- 
ing the  correlation  of  measures  apparently  unconnected. 

1  Reprinted  from  the  Proceedings  of  the  American  Political  Science  Association,  Chicago, 
December  2S-30,  1904. 


302  AMERICAN  STATE  GOVERNMENT 

Local  administration  in  the  United  States  during  the  first  half  of  the 
nineteenth  century  developed  steadily  in  the  direction  of  a  completely 
decentralized  re'gime.  Our  constitutional  system  inevitably  made  the  local 
authorities  subject  to  the  state  legislatures,  and  there  was  always  a  large 
amount  of  legislative  control  limiting  the  scope  of  local  action.  But  within 
the  limits  of  powers  conferred  by  the  legislature  there  came  to  be  no 
administrative  supervision  over  the  acts  of  the  local  officials. 

During  the  last  half  century^  there  has  been  in  evidence  a  counterwave, 
making  its  way  slowly  and  with  difficulty,  and  as  yet  far  from  overcom- 
ing the  earlier  tide,  but  nevertheless  gaining  in  force  as  time  goes  on. 
In  many  branches  of  administration  there  have  been  established  state 
officers  and  boards  with  vanning  powers  of  inspection  and  supervision  over 
local  officials.  This  has  been  the  case  in  the  field  of  health  regulation 
(of  which  we  have  just  heard),  in  charity  administration,  in  school  man- 
agement, and  in  local  finance. 

It  is  with  the  movement  toward  state  administrative  supervision  in  the 
last  named  of  these  fields  that  this  paper  is  concerned.  It  is  proposed 
first  to  describe  what  has  been  accomplished  in  those  states  where  most 
has  been  done,  and  then  to  consider  the  general  principles  of  a  wise  pol- 
icy in  this  matter.  What  has  been  done  has  been  mainly  in  reference  to 
taxation  and  accounting.  What  will  be  said  as  to  a  general  policy  will 
consider  also  the  question  of  local  indebtedness. 

Taxation 

Local  authorities  in  this  country  have  only  such  power  of  taxation  as 
is  conferred  by  the  legislatures.  And  as  yet  no  local  authority  in  this 
country  has  been  given  power  to  determine  for  itself  what  kind  of  taxes 
it  should  levy,  but  may  levy  only  those  taxes  specifically  authorized  by 
statutes.  There  is  therefore  no  room  for  administrative  supervision  in  this 
direction,  since  the  local  authorities  have  no  sphere  of  independent  action. 

As  to  the  rate  of  taxation  local  discretion  is  also  closely  limited.  For 
some  taxes,  notably  the  tax  or  license  for  the  sale  of  liquors,  the  state  law 
specifies  the  rate  as  well  as  the  nature  of  the  tax ;  for  the  general-property 
tax  more  leeway  is  given.  But  on  the  one  hand  the  local  authorities  are 
compelled  by  statute  to  levy  taxes  to  meet  certain  expenditures,  and  on 
the  other  hand  are  usually  restricted  as  to  the  aggregate  tax  rate ;  and 
between  this  Scylla  and  Charybdis  a  narrow  course  must  often  be  steered. 
Under  these  circumstances  again  there  is  little  opportunity  for  adminis- 
trative supervision,  and  none  has  developed. 

When,  however,  we  turn  to  the  assessment  of  property  for  the  general- 
property  tax,  we  find  a  wide  field  for  local  discretion,  and  in  recent  years 
significant  steps  in  the  direction  of  administrative  supervision.  Under 
the  methods  prevailing  in  the  early  part  of  the  nineteenth  century  local 
assessors  had  complete  freedom  in  the  valuation  of  property,  not  only  for 


THE  STATE  ADMINISTRATION  303 

local  taxes  but  also  for  state  taxes.  It  was  in  reference  to  the  state  taxes 
that  the  first  step  was  taken  in  the  direction  of  administrative  supervision. 
Beginning  apparently  in  Ohio  in  1825,  state  boards  of  equalization  have 
been  established  in  most  states,  with  power  to  change  the  aggregate  valu- 
ation of  counties  so  as  to  equalize  the  apportionment  of  the  state  tax. 
These  state  boards  of  equalization  differ  widely  in  their  organization,  but 
none  of  them  have  the  necessary  means  to  perform  their  work  satisfac- 
torily. In  some  states  they  have  been  composed  only  of  ex-officio  mem- 
bers, elected  to  other  positions,  and  therefore  unable  to  give  much 
attention  to  their  duties  in  regard  to  assessments.  In  several  states  the 
boards  are  composed  of  a  large  number  of  members,  elected  in  local  dis- 
tricts, who  give  only  a  small  part  of  their  time  to  this  service,  —  the 
extreme  case  being  found  in  Ohio,  where  it  is  composed  of  forty  mem- 
bers, who  meet  once  in  ten  years.  In  a  few  states,  as  New  York  and  Cali- 
fornia, there  is  a  small  number  of  salaried  members,  giving  most  of  their 
time  to  this  work  and  that  of  direct  assessment ;  but  even  in  these  cases 
it  is  impossible  for  the  board  to  make  a  complete  investigation  of  the 
local  assessments  that  would  be  necessary  for  an  accurate  equalization. 

Tax  commissioners  and  economists  have  discussed  at  length  the  fail- 
ures and  defects  of  these  boards  of  equalization.  Moreover,  they  do  not 
come  strictly  within  the  subject  of  this  paper,  and  have  been  noted  sim- 
ply as  the  first  stage  of  supervision  which  paved  the  way  for  later  cen- 
tralizing developments.  We  may  therefore  proceed  to  consider  the  latter, 
considering  them  in  the  logical  rather  than  in  their  chronological  order. 

It  may  be  noted  here  that  these  centralizing  tendencies  in  relation  to 
local  taxation  have  been  but  one  aspect  of  more  general  changes  in  the 
tax  laws.  And  it  may  be  said  that  it  was  only  after  the  states  had  in- 
troduced some  control  over  the  administration  of  assessments  for  state 
revenue  that  the  importance  and  complexity  of  the  work  of  local  asses- 
sors and  the  need  for  effective  supervision  over  their  local  duties  was 
understood. 

Effective  state  supervision  over  local  assessing  officers  seems  to  have 
been  first  established  in  Indiana.  In  1891  there  was  established  in  that 
state  a  state  board  of  tax  commissioners,  consisting  of  two  salaried 
members  in  addition  to  the  ex-officio  members  of  the  former  State  Board 
of  Equalization :  to  prescribe  all  forms  of  books  and  blanks  used  in  the 
assessment  and  collection  of  taxes;  to  construe  the  tax  and  revenue 
laws  of  the  state  and  give  instructions  to  local  officers  when  requested ; 
to  see  that  all  assessments  of  property  were  made  according  to  law ;  and 
to  visit  each  county  in  the  state  at  least  once  a  year  to  hear  complaints, 
collect  information,  and  secure  compliance  with  the  law.  Besides  carrying 
out  these  mandatory  powers,  the  state  tax  commissioners  have  since 
1894  annually  called  the  county  assessors  of  the  state  to  an  annual 
conference.^ 

1  Rawles,  Centralizing  Tendencies  in  the  Administration  of  Indiana,  pp.  373,  276. 


304  AMERICAN  STATE  GOVERNMENT 

In  1896  a  board  of  tax  commissioners  was  established  in  New  York 
with  somewhat  less  authority,  including  the  power  to  investigate  and 
examine  methods  of  assessment  within  the  state ;  to  furnish  local  asses- 
sors with  information  to  aid  them ;  and  to  ascertain  whether  the  local 
assessors  faithfully  discharged  their  duties. 

A  Michigan  statute  of  1899  provided  for  a  board  of  tax  commission- 
ers with  power :  to  exercise  general  supervision  over  the  local  assessing 
officers ;  to  confer  and  advise  with  them  as  to  their  duties ;  to  visit  each 
county  in  the  state  once  a  year,  to  hear  complaints  and  secure  the  full 
assessment  of  all  property  in  the  state.  They  were  also  empowered  to 
summon  and  examine  witnesses  under  oath,  to  inspect  the  local  assess- 
ment rolls,  to  change  the  assessment,  and  to  add  to  the  rolls  property  not 
assessed. 

And  a  Wisconsin  statute  of  the  same  year  [1899]  provided  for  a  tax 
commissioner  with  two  assistants  to  have  general  supervision  over  the 
system  of  taxation  throughout  the  state,  with  specific  authority  to  require 
reports  from  local  officers.  Two  years  later  added  powers  were  conferred 
to  supervise  local  assessors  and  boards  of  review ;  to  advise  and  direct 
local  assessing  officers,  and  to  initiate  proceedings  to  enforce  the  laws 
against  negligent  or  delinquent  officials ;  and  to  visit  the  counties  and  in- 
vestigate the  methods  of  local  assessors.  Another  statute  of  190 1  created 
the  new  office  of  county  supervisor  of  assessment,  with  powers  of  super- 
vision over  town  and  citv  assessors. 

These  administrative  measures  have  not  solved  all  of  the  difficulties 
connected  with  the  assessment  of  property  for  taxation,  but  in  most  of 
these  states  they  have  brought  about  a  decided  improvement  both  in 
methods  and  results.  Statistical  results  are  less  striking  in  New  York 
than  in  the  other  states,  partly,  perhaps,  because  the  powers  of  the  state 
tax  commissioners  are  less,  and  partly  because  of  the  subsequent  develop- 
ment of  special  taxes  for  state  revenues,  which  has  apparently  caused  a 
relaxation  of  the  supervision  of  local  assessments,  now  used  mainly  for 
local  purposes.  But  in  Indiana  the  assessed  valuation  of  real  estate  was 
increased  by  44  per  cent  in  one  year  after  the  new  system  went  into 
effect;^  in  Michigan  the  assessed  valuation  of  property  has  increased 
over  60  per  cent  from  1899  to  1903  ;"-^  and  in  Wisconsin,  where  the 
most  thorough  system  of  supervision  has  been  established,  local  assess- 
ments more  than  doubled  in  three  years.^  And  it  may  be  further  noted 
that  in  each  of  these  three  states  the  aggregate  assessed  valuation  of 
property  is  from  30  to  50  per  cent  larger  than  in  the  neighboring  state 
of  Illinois,  whose  population  and  wealth  is  more  than  double  that  of  the 
other  states,  but  where  there  is  no  efficient  system  of  supervision. 

'  55^553)9.37,744  in  1890,  ^898,600,323  in  1891  (Rawles,  p.  276). 

28968,189,097  in  1899,  »i,537,355-73S  in  i<;03. 

'*  ^648,035,848  in  1899,  ^1,369,81 1,147  in  1902  (Report  Wisconsin  Tax  Com.,  1903,  p.  10). 


THE  STATE  ADMINISTRATION  305 

Years  before  these  recent  measures  for  the  supervision  of  local  asses- 
sors there  began  the  policy  in  many  states  of  a  more  complete  centraliza- 
tion in  the  assessment  of  special  classes  of  property,  especially  railroads, 
and  more  recently  other  transportation  companies,  and  also  telegraph  and 
telephone  companies.  In  fact,  only  in  Rhode  Island,  New  Mexico,  and 
Texas  are  railroads  still  assessed  only  by  local  authorities.  In  some  cases 
this  centralization  of  assessment  has  been  part  of  the  movement  to  secure 
such  taxes  for  the  state  treasury ;  but  in  a  number  of  states,  notably  in 
Indiana  and  Illinois  since  1872,  the  state  assessment  of  such  property  has 
been  used  for  purposes  of  local  taxation.  Usually  this  centralized  state 
assessment  has  been  established  only  for  the  property  of  corporations 
extending  over  a  large  number  of  local  taxing  districts  ;  but  in  New  York, 
under  a  law  of  1899,  the  state  tax  commissioners  assess  for  local  taxa- 
tion the  value  of  special  franchises  in  the  public  streets,  which  are  for  the 
most  part  held  by  local  companies;  and  in  190 1  the  Indiana  Tax  Com- 
mission was  given  charge  of  the  assessment  of  street  and  electric  rail- 
ways. The  New  York  Franchise  Tax  Law  has  been  of  great  value  in 
drawing  attention  to  a  large  amount  of  wealth  that  had  previously  escaped 
taxation ;  but  it  may  be  questioned  whether  the  separation  of  the  fran- 
chise from  other  property  elements  or  the  complete  centralization  in  the 
assessment  of  distinctly  local  property  is  necessarj'  or  altogether  advis- 
able. In  other  states  the  value  of  such  special  franchises  is  now  often 
included  (without  additional  legislation)  in  the  general  assessment  of  the 
owners  in  the  ordinary  course  of  valuing  property  for  taxation. 

Auditing  and  Accounting 

State  supervision  over  local  accounts  is  as  yet  less  developed  than  state 
supervision  over  local  assessments.  This  is  perhaps  not  surprising  in 
view  of  the  fact  that  in  most  states  the  accounts  of  state  finances  are  very 
far  from  satisfactory.  It  is  true  there  have  been  state  auditors  and  comp- 
trollers since  the  establishment  of  state  governments,  and  in  some  cases 
similar  officers  in  colonial  times ;  but  the  functions  of  such  officers  have 
often  been  limited,  while  primitive  methods  of  bookkeeping  established  in 
the  days  of  insignificant  financial  transactions  have  remained  in  use  after 
expenditures  have  come  to  be  counted  in  millions  of  dollars,  and  in  the 
face  of  the  development  of  systematic  accounting  in  private  and  corpo- 
rate business.  Indeed,  the  imperfect  and  inadequate  accounting  methods 
of  the  larger  cities  have  often  been  somewhat  better  than  those  of  the 
states  within  which  the  cities  are  located. 

But  within  recent  years  there  have  been  significant  measures  taken 
both  to  establish  satisfactor}'  accounting  systems  for  the  state  finances, 
and  also  to  establish  state  super\asion  over  the  accounts  of  local  officers. 
It  is  only  the  latter  part  of  this  development  that  can  be  here  considered. 


•;o6  AMERICAN  STATE  GOVERNMENT 

Massachusetts  seems  to  have  been  the  first  state  to  have  undertaken 
any  effective  control  over  local  accounts.  And  here  the  supervision  has 
been  confined  to  officers  of  the  counties,  which  in  that  state  have  never 
developed  any  vigorous  local  autonomy.  Thus  appropriations  and  tax 
levies  for  each  county  except  Suffolk  have  long  been  voted  by  the  legis- 
lature, although  this  is  largely  a  matter  of  form  and  the  estimates  and 
proposals  of  the  county  commissioners  are  regularly  adopted.  In  1879, 
however,  the  commissioners  of  savings  banks  were  authorized  and  re- 
quired to  inspect  the  books  and  accounts  of  most  of  the  county  officers, 
with  power  to  require  uniformity  in  methods  of  keeping  accounts  and 
financial  reports  in  accordance  with  prescribed  forms.  In  1887  the  state 
supervision  was  made  more  effective  by  placing  it  in  the  hands  of  a  newly 
established  office  of  comptroller  of  county  accounts,  whose  duties  included 
the  accounts  of  some  officers  previously  exempted. 

Valuable  results  have  come  from  this  supervision  of  county  accounts. 
Irresponsible  methods  disclosed  in  the  seventies  have  been  corrected, 
and  important  reforms  have  been  introduced.  Governor  Bates  two  years 
ago  testified  to  the  good  that  has  been  devised  from  the  uniform  system 
of  accounting  established  in  the  counties,^  and  indorsed  a  similar  super- 
vision over  municipal  accounts. 

One  of  the  youngest  states  in  the  Far  West  was  the  next  to  follow  up 
these  partial  measures  of  the  old  Puritan  commonwealth,  by  establishing 
a  comprehensive  system  of  state  supervision  over  local  accounts.  The 
constitution  of  Wyoming,  adopted  in  i8go,  provided  for  the  office  of 
state  examiner  to  examine  the  accounts  of  certain  state  officers,  clerks  of 
courts,  county  treasurers,  and  such  other  duties  as  the  legislature  might 
prescribe.  This  was  followed  by  the  enactment  of  statutes  which  before 
long  placed  under  the  supervision  of  this  officer  the  accounts  of  every 
public  officer  in  the  state  handling  public  funds  ;  authorized  him  to  estab- 
lish a  uniform  system  of  bookkeeping  by  the  state  and  local  officials,  and 
to  examine  their  accounts ;  and  made  provisions  for  further  action  in 
cases  of  defalcation  discovered  through  his  examinations.  The  same  officer 
has  also  supervision  over  banks  and  other  private  financial  institutions. 

The  examination  of  public  accounts  is  technical  and  embraces  the  checking 
of  every  item  whether  great  or  small,  the  subsequent  footing  of  the  cash  ac- 
counts, and  finally  their  summation.  Every  account  paid  is  closely  examined, 
the  nature  of  the  expense  ascertained,  the  legality  of  the  bill  inquired  into,  and 
the  amount  is  finally  checked  to  the  stub  of  the  warrant  issued,  and  also  entered 
in  the  proper  column  of  the  expense  register.  Whether  or  not  the  officer  con- 
ducted the  affairs  of  his  office  in  conformity  with  the  statute  is  also  made  a 
subject  of  inquiry. 

The  examination  made,  a  written  report  setting  forth  die  results,  accompanied 
with  cridcisms,  requirements,  and  recommendations,  is  prepared  and  filed  with 

1  R.  H.  WhiUen,  "Administralion  in  M.i.ssacliusclts,"  pp.  149-151  {Colmnb'ui  Univcrsi/y 
Studies  in  Political  Science,  Vol.  VIII).   Annual  message  of  Governor  Bates,  January  S,  1903. 


THE  STATE  ADMINISTRATION  307 

the  governor  and  a  copy  thereof  filed  with  the  officer  or  officers  whose  ac- 
counts were  the  subject  of  investigation.  Should  it  appear  that  there  had  been 
violations  of  law  in  the  conduct  of  any  office,  the  examiner  must  report  thereon, 
and  he  has  authority  to  enforce  his  rulings.  In  case  of  defalcation  or  embez- 
zlement his  findings  are  absolute,  until  reversed  by  the  district  or  other  court 
having  jurisdiction. 

In  case  of  the  default  of  any  treasurer  and  the  inability  of  such  officer  to 
replace  funds  illegally  used  within  the  time  designated  by  the  examiner,  the 
examiner  shall  at  once  assume  charge  and  in  all  respects  he  becomes  the  legally 
constituted  treasurer  of  the  state,  county,  municipality,  or  school  district,  as 
the  case  may  be. 

Another  important  feature  is  the  meeting  of  the  examiner  with  the  consti- 
tuted boards  authorized  to  make  the  annual  tax  levy.  At  such  time  the  expense 
budget  for  the  ensuing  year  is  carefully  canvassed  and  reductions  made  wher- 
ever possible.  This  paves  the  way  for  a  reduced  levy  of  taxes,  and  frequently 
the  total  levy  may  be  reduced  from  one  fourth  to  one  mill  or  more,  as  compared 
with  the  previous  year.^ 

Striking  evidence  may  be  adduced  of  the  benefits  resulting  from  this 
system  of  supervision  in  Wyoming.  In  1892  the  expenditures  of  the 
twelve  counties  in  the  state  were  $412,000,  while  only  two  counties 
were  on  an  approximate  cash  basis,  the  others  generally  allow'ing  their 
expenses  to  exceed  their  revenues  and  issuing  illegal  w'arrants  to  pay 
bills.  In  1899,  with  thirteen  counties,  the  total  expenditures  had  been 
reduced  to  $295,000,  and  every  county  was  on  a  cash  basis,  with  a  sur- 
plus at  the  end  of  the  year.^  Several  governors  of  the  state  have  spe- 
cially commended  the  work  of  the  state  examiner  in  their  messages  to 
the  state  legislature.^ 

Other  states  near  Wyoming  soon  followed  its  example  to  some  extent. 
Montana  and  North  Dakota  have  each  created  the  oflfice  of  state  exam- 
iner, with  power  to  examine  books  and  prescribe  accounting  methods  in 
county  oflfices,  as  well  as  in  state  institutions.  South  Dakota,  Nebraska, 
and  Kansas  have  provided  a  less  effective  supervision,  —  in  the  two  first 
named  through  the  state  auditor ;  in  the  last  named  through  a  state  ac- 
countant.^ More  recently  (in  1903)  Nevada  has  established  a  more 
intensive  system  of  control.  A  state  board  of  revenue  must  approve  the 
debts  of  local  governments,  prescribe  the  forms  for  financial  reports  to 
the  state  comptroller,  and  employ  an  examiner  to  inspect  the  accounts 
and  records.^  And  in  the  same  year  the  extreme  southern  state  of 
Florida  created  the  office  of  state  auditor,  whose  chief  duty  is  to  pre- 
scribe the  form  of  county  accounts  and  see  by  inspection  that  they  are 
properly  kept.® 

1  H.  B.  Henderson,  Report  of  Conference  on  Good  City  Government,  National  Municipal 
League,  1900,  pp.  251-252. 

2  Ibid.  p.  251. 

3  Governor  William  A.  Richards  in  1899,  and  D.  F.  Richards  in  1903. 

•*  Nebraska,  Laws  of  1893,  Chapter  15  ;  Kansas,  Laws  of  1895,  Chapter  247. 

5  Laws  of  1903,  Chapters  78,  123.  6  Laws  of  1903,  Chapters  14,  71. 


3oS  AMERICAN  STATE  GOVERNMENT 

In  the  state  of  New  York  something  has  been  accomplished  in  the 
same  direction.  Beginning  in  1892,  the  state  comptroller  has  been  given 
power  to  audit  certain  accounts  of  county  treasurers,  including  the  court 
and  trust  funds  and  the  accounts  for  the  inheritance  tax  ;  while  the  state 
excise  commissioner  has  similar  authority  over  the  accounts  for  the  liquor 
tax.  The  introduction  of  the  comptroller's  audit  disclosed  inextricable 
confusion  in  the  various  accounts  of  county  treasurers,  and  that  within  a 
few  years  before  there  had  been  defalcations  or  shortages  in  thirty-three 
of  the  sixty  counties  in  the  state.  A  uniform  system  of  bookkeeping  has 
now  been  introduced  for  these  special  funds,  which,  with  the  regular 
audit,  discovers  and  often  prevents  deficits  and  defalcations.^ 

In  1903  a  statute  was  enacted  requiring  all  cities  in  the  state  with  less 
than  250,000  population  to  make  uniform  financial  reports  to  the  Secre- 
tary of  State.  But  as  no  provision  was  made  for  uniformity  of  accounts 
or  for  an  examination  or  audit  of  the  books  of  the  city  officers,  nothing 
has  as  yet  been  accomplished  under  this  provision. 

Until  two  years  ago  this  movement  towards  state  supervision  of  local 
accounts  was  confined  to  the  less  important  states  and  to  such  partial 
measures  in  the  larger  states  as  have  been  noted.  But  in  1902  the  state 
of  Ohio  enacted  the  most  important  law  on  the  subject  yet  adopted. 
This  provided  for  a  uniform  system  of  accounting,  auditing,  and  report- 
ing for  every  public  office  in  that  state,  under  the  supervision  of  a  newly 
established  bureau  of  inspection  in  the  office  of  the  auditor  of  state.  The 
act  requires  separate  accounts  for  every  appropriation  or  fund,  and  for 
every  department,  institution,  public  improvement,  or  public-service  indus- 
try ;  provides  for  full  financial  reports  to  the  auditor  of  state  ;  and  au- 
thorizes annual  examinations  of  the  finances  of  all  public  offices,  with  power 
to  the  examiners  to  subpoena  witnesses  and  examine  them  under  oath. 

To  carry  out  the  provisions  of  the  act  three  deputies  and  a  clerk  were 
appointed  by  the  auditor  of  state,  all  of  whom  were  former  county  auditors 
and  experienced  in  local  methods.  These,  with  the  assistance  of  expert 
accountants  who  had  given  special  attention  to  municipal  accounting,  and 
after  a  thorough  investigation  of  existing  practices,  prepared  complete 
systems  of  accounting  which  have  been  installed  throughout  the  state  in 
the  offices  of  county  auditors  and  treasurers,  city  auditors  and  treasurers, 
village  clerks  and  treasurers,  school-district  clerks  and  treasurers,  and 
township  clerks  and  treasurers.  The  first  examinations  of  the  accounts 
are  now  being  made  by  the  examiners  of  the  bureau,  and  from  their  re- 
ports comjiarative  statistics  of  local  finances  covering  the  whole  state  of 
Ohio  will  be  published. 

This  brief  description  of  these  various  measures  must  bring  into  clearer 
light  their  significance  and  the  tendency  which  they  illustrate.  No  one 
considered  by  itself,  nor  even  all  that  has  been  done  in  any  single  state, 

1  Fairlie,  "Centralization  of  Administration  in  New  York  State,"  pp.  185-186  (^Columbia 
University  Studies  in  Political  Science,  Vol.  IX). 


THE  STATE  ADMINISTRATION  309 

may  seem  of  very  large  importance ;  but  when  the  detached  and  appar- 
ently disconnected  pieces  have  been  brought  together,  it  must  be  evident 
that  in  the  aggregate  they  indicate  a  distinct  movement  towards  state  su- 
pervision of  local  finance.  We  may  therefore  inquire  into  the  rationale  of 
such  a  movement,  and  consider  to  what  extent  it  should  be  encouraged. 

In  some  respects  the  movement  may  seem  in  conflict  with  general 
principles  which  are  still  declared  to  be  fundamental  in  our  American 
system  of  government.  It  must  be  admitted  at  least  that  it  is  not  consist- 
ent with  the  most  extreme  demands  for  local  autonomy,  and  that  state 
control  is  not  so  clearly  justified  in  this  field  by  a  general  state  interest 
as  is  the  case  in  state  supervision  of  health  administration,  schools,  or  the 
local  management  of  state  finances. 

If,  however,  instead  of  unreasoned  ideas,  we  apply  the  principles  of 
such  political  thinkers  as  John  Stuart  Mill  and  Henry  Sidgwick,  it  will 
be  seen  that  this  movement  is  in  entire  accord  with  a  rational  political 
philosophy.  These  writers  recognize  fully  the  advantages  of  locally  elected 
authorities  for  matters  of  local  interest,  as  well  as  for  the  sake  of  the 
political  education  of  the  people  ;  but  they  also  point  out  the  advantages 
of  central  supervision,  not  only  where  the  interests  of  the  larger  govern- 
mental units  are  directly  concerned,  but  also  because  of  the  more  com- 
plete information  and  the  larger  degree  of  technical  efficiency  which  the 
higher  government  can  demand.^ 

Both  of  these  latter  factors  support  state  supervision  in  the  two 
branches  of  local  finance  that  have  been  noted.  The  assessment  of  prop- 
erty with  any  approach  to  equality  of  treatment  calls  for  a  high  degree 
of  expert  skill  and  the  comparison  of  conditions  over  a  wide  area.  A 
uniform  system  of  accounting  is  essential  for  accurate  information  on 
public  expenditures,  and  for  the  comparison  of  outlay  with  returns  in  the 
many  branches  of  local  administration.  And  state  control  over  the  ac- 
counts of  local  public  authorities  is  certainly  as  important  as  the  control 
that  has  been  established  in  most  states  over  the  accounts  of  private  cor- 
porations, such  as  railroads,  banks,  and  insurance  companies.  It  may 
also  be  noted  that  the  state  supervision  established  over  local  finance 
does  not  restrict  local  management  where  local  control  is  essential,  —  in 
determining  the  amount  and  distribution  of  expenditures. 

In  conclusion,  attention  may  be  called  to  another  branch  of  local  finance 
where  a  system  of  state  administrative  supervision  is  urgently  needed,  — 
over  the  loans  and  debts  of  local  authorities.  The  need  for  some  control 
here  is  already  recognized  in  the  constitutional  and  statutory-debt  limits 
established.  But  these  arbitrary  limits  do  not  and  cannot  adjust  them- 
selves to  the  varying  needs  and  conditions  of  different  local  communities. 
There  is  a  great  difference  between  a  debt  incurred  for  water  works, 
which  will  be  met  by  the  revenue  from  the  undertaking,  and  a  debt  for 
parks,  which  must  be  paid  from  general  taxation,  and  a  debt  for  street 

1  Mill,  Representative  Government,  chap.  xv.   Sidgwick,  Elements  of  Politics,  chap.xxv. 


3IO  AMERICAN  STATE  GOVERNMENT 

paving  that  may  be  worn  out  in  ten  years.  To  decide  whether  additional 
debt  may  be  safely  incurred,  can  be  determined  wisely  only  after  a  care- 
ful examination  of  a  complex  financial  situation,  involving  a  study  not 
merely  of  the  aggregate  amount  of  existing  debt,  but  also  of  the  provi- 
sions for  meeting  this  debt  and  of  the  resources  of  the  local  government 
concerned.  Such  an  examination  requires  expert  technical  knowledge, 
which  is  entirely  absent  from  the  present  crude  legislative  limitations,  and 
can  only  be  supplied  by  a  permanent  administrative  authority. 


TAXATION  OF  THE  PROPERTY  OF  RAILWAY 
CORPOR.-VTIONS  ^ 

By  Governor  La  Follette 

In  the  contest  for  equal  and  just  taxation  prior  to  1899  it  was  well 
understood  that  the  public-service  corporations  were  bearing  much  less 
than  a  fair  share  of  the  tax  burden.  The  legislature  of  that  year  assem- 
bled under  the  strongest  obligations  to  the  people  of  this  state  to  equalize 
taxation.  A  movement  was  made  toward  the  discharge  of  that  obligation 
by  passing  through  the  assembly  a  bill  increasing  the  license  fee  upon  the 
gross  earnings  of  the  railroads  from  4  to  5  per  cent.  While  this  would 
have  fallen  far  short  of  the  amount  which  should  be  borne  by  the  rail- 
'road  companies,  it  would  have  proven  a  very  substantial  increase.  This 
bill  was  beaten  in  the  Senate.  It  was  at  this  period  in  the  contest  that 
the  bill  was  brought  forward  creating  the  Tax  Commission.  The  bill  re- 
ceived the  support  of  the  opponents  as  well  as  advocates  of  more  equal 
taxation,  including  lobby  agents  and  railway-company  attorneys.  To  them 
it  presented  the  relief  of  postponement. 

The  passage  of  the  measure  was  urged  as  a  gi"eat  public  necessity. 
It  was  maintained  that  the  members  of  the  legislature  could  not  give  the 
subject  of  taxation  the  time  and  attention  which  its  importance  required  ; 
that  it  demanded  men  trained  for  the  task,  clothed  with  power  and  author- 
ity to  prosecute  the  fullest  investigation,  enabling  them  to  place  before  the 
legislature  the  ripe  work  of  their  research  for  its  guidance  and  direction. 

While  it  was  then  well  understood  that  the  increase  in  railroad  taxation 
sought  to  be  enacted  at  that  session  was  much  less  than  the  amount 
fairly  due  from  the  companies,  nevertheless  the  creation  of  the  commis- 
sion was  accepted  in  good  faith  upon  the  promise  made  by  the  represent- 
atives of  the  railroad  companies  that  the  results  of  the  work  of  the 
commission  would  be  accepted  and  acquiesced  in.  Able,  conscientious, 
and  conservative  men  were  appointed  upon  the  Tax  Commission,  and 
prosecuted  their  investigation  for  a  period  of  nearly  two  years,  making 
their  first  report  to  the  legislature  which  assembled  January  9,  1901.    That 

1  From  a  message  to  the  Wisconsin  legislature,  January,  1903. 


THE  STATE  ADMINISTRATION  311 

legislature  had  been  chosen  by  the  people  of  Wisconsin  with  the  plain  un- 
derstanding that  they  would  receive  the  report  of  the  Tax  Commission 
and  carry  out  its  recommendations  equalizing  the  burdens  of  taxation. 

The  report  presented  by  that  commission  exhibited  original,  intelligent 
research,  able  reasoning,  and  well-considered  conclusions.  It  left  nothing 
to  doubt  or  conjecture,  but  plainly  pointed  the  way  for  the  legislature. 
It  made  it  clear  that  if  the  railroads  were  taxed  at  their  actual  value 
at  the  same  rate  as-  other  taxable  property  of  the  state,  they  would  pay 
a  million  dollars  a  year  more  than  they  were  then  paying. 

The  creation  of  the  Tax  Commission  was  a  deliberate  avowal  on  the 
part  of  the  legislators  of  their  inability  to  deal  with  the  complex  subject 
of  taxation  without  assistance.  There  was  well-grounded  reason  for  this. 
Putting  aside  all  question  of  the  intricate  character  of  the  subject,  the 
brief  period  covering  the  legislative  session,  the  confusion  arising  from 
the  multiplicity  of  legislative  duties,  the  many  interruptions  and  distrac- 
tions to  which  they  are  inevitably  subjected,  leave  little  time  for  that 
research  and  deliberation  essential  to  wise  and  sound  legislative  action 
in  an  involved  matter  of  such  scope  as  taxation ;  hence  it  was  the  more 
remarkable  that  legislators,  some  of  whom  had  not  previously  given  the 
subject  any  study  whatever,  and  nearly  all  of  whom  had  examined  it  but 
superficially,  should  feel  prepared  to  assume  the  responsibility  of  reject- 
ing the  conclusions  of  the  Tax  Commission,  arrived  at  after  long,  patient, 
and  arduous  investigation. 

Such  was,  however,  the  case.  After  weeks  and  months  of  delay, 
during  which  lobby  agents  and  representatives  of  the  railway  companies 
were  busy,  the  recommendations  of  the  Tax  Commission  were  rejected 
and  the  bills  prepared  by  them  and  submitted  to  the  legislature,  in  accord- 
ance with  law,  were  defeated  in  the  assembly,  action  upon  the  same 
having  been  delayed  in  the  Senate  until  after  the  measures  proposed  by 
the  Tax  Commission  had  been  beaten  in  the  assembly. 

Again  the  question  of  equalizing  the  burdens  of  taxation  has  been  sub- 
mitted to  the  people  of  Wisconsin,  and  your  honorable  body  assembles 
with  obligations  renewed  for  the  third  time,  and  with  responsibilities 
increased,  finally  to  accord  justice  to  the  taxpayers  of  this  commonwealth. 

Upon  the  executive,  under  the  constitution  and  laws,  rests  the  respon- 
sibility of  presenting  to  you  such  reasons  as  he  may  offer  why  legislation 
should  be  enacted.  This  he  may  do  from  time  to  time  during  your  delib- 
erations. Further  than  this  he  is  powerless,  excepting  the  legislature, 
acting  upon  those  suggestions,  or  upon  their  own  initiative,  pass  the 
measures  and  present  them  for  his  approval.  After  proposing  or  recom- 
mending the  enactment  of  the  measure  to  the  legislature,  the  responsibil- 
ity of  the  executive,  as  well  as  his  authority,  ceases.  Unless  action  be 
taken  by  the  legislature  the  measure  fails. 

You  will  soon  be  in  possession  of  the  report  of  the  Tax  Commission. 
It  represents  nearly  four  years  of  labor  by  the  able  members  of  that  body 


312  AMERICAN  STATE  GOVERNMENT 

without  bias  or  prejudice,  prompted  solely  by  the  desire  conscientiously 
to  discharge  high  official  obligation.  I  am  confident  you  will  place  that  re- 
liance upon  the  work  of  this  commission  that  the  public  has  already  sealed 
with  its  approval.  If  the  inauguration  of  the  investigation  of  this  subject 
by  the  commission  was  in  good  faith,  then  in  good  faith  those  for  whose 
guidance  its  work  was  planned  are  bound  to  give  heed  to  its  findings  and 
recommendations. 

In  determining  that  we  should  abandon  the  license-fee  system  of  rail- 
road taxation  in  Wisconsin,  the  commission  will  simply  reaffirm  the 
declaration  made  two  years  ago,  that  the  license-fee  system  would  be 
"  superseded  by  a  more  scientific  method  "  of  railway  taxation. 

Of  the  license-fee  system  upon  gross  earnings  a  high  authority  says  : 

The  administration  of  such  taxes  is  comparatively  simple  and  certain,  but 
they  have  no  other  justification.  They  are  unequal  and  arbitrary,  the  rate  im- 
posed being  necessarily  fixed  by  guesswork  or  intrigue.  In  the  case  of  public- 
service  corporations  there  are  but  two  bases  of  taxation  that  can  be  plausibly 
defended,  —  net  income  and  actual  value.  When  both  these  are  abandoned, 
chaos  results.  These  arbitrary  taxes,  though  unequal  as  between  corporations 
of  the  same  class,  have  usually  been  favored  by  corporate  interests  because  of 
their  definiteness  and  because  the  amount  paid  is  usually  much  below  their 
proportionate  share  of  the  burden  of  government  as  measured  by  net  income 
or  the  actual  value  of  their  property. 

While  the  administration  or  collection  of  such  taxes  is  comparatively 
simple  and  certain,  it  is  not  less  certain  that  the  state  is  entirely  at  the 
mercy  of  the  corporation  respecting  the  amount  of  gross  earnings  re- 
ported, upon  which  the  license  fee  is  computed,  and  it  may  be  safely 
assumed  that  the  corporation  never  wrongs  itself  in  making  such  report. 

The  license-fee  system,  if  fairly  adjusted  as  between  railroads  and 
other  taxable  property  of  the  state  to-day  upon  an  agreed  percentage, 
would  furnish  no  assurance  of  a  fair  division  of  tax  burden  a  year  hence. 
Conditions  arise  from  time  to  time  in  the  commonwealth  requiring  an 
increase  in  the  rate  upon  taxable  property.  At  such  times  property  taxed 
under  the  ad  valorem  system  must  bear  all  of  the  increased  burden,  while 
the  percentage  upon  which  the  license  fee  is  based  remains  the  same. 
No  valid  reason  can  be  assigned  why  railroad  property,  remunerative  as 
it  is,  —  its  value  increasing  with  the  development  and  growth  of  the  state, 
—  should  not  bear  its  relative  proportion  of  whatever  befalls  other  prop- 
erty by  reason  of  increases  in  taxation  to  meet  emergencies  and  exigen- 
cies that  come  in  the  ordinary  course  of  human  events. 

Legislative  appropriations  from  year  to  year  are  increased  as  the  ex- 
pansion and  develoj^jincnt  (A  the  state  creates  proper  and  unanswerable 
demands  therefor.  I'ublic  buildings  for  properly  housing  and  caring  for 
the  state's  dependent,  its  criminal  classes,  for  its  schools,  and  courts,  and 
university,  must  be  erected,  renewed,  and  enlarged  repeatedly.  It  is  but 
just  that  railroad  property  should  bear  its  share  of  such  apfiropriations. 


THE  STATE  ADMINISTRATION  313 

The  railroad  companies  under  the  license-fee  system  have  no  interest 
and  no  concern  respecting  the  money  appropriated  by  the  legislature.  It 
is  a  fact  within  the  knowledge  of  every  legislator  of  experience  that  the 
influence  of  the  railroad  lobby  is  often  employed  to  pass  legislation  result- 
ing in  an  increase  of  general  taxes  in  exchange  for  the  votes  of  those 
interested  in  such  appropriations  to  defeat  other  legislation  obnoxious  to 
the  railroads.  Doubtless  millions  of  dollars  have  been  unnecessarily 
expended  through  such  combinations.  This  could  not  have  occurred  if 
the  railroads  had  been  taxed  under  the  ad  valorem  system  and  possessed 
the  same  general  interest  that  other  taxpayers  have  in  keeping  appropri- 
ations within  reasonable  limits. 

But  in  addition  to  all  of  the  other  objections  to  the  license-fee  system, 
when  it  is  remembered  that  they  are  permitted  in  effect  to  fix  the  amount 
of  the  taxes  which  they  will  pay,  without  any  practical  check  or  super- 
vision by  the  state,  no  excuse  or  justification  can  be  given  for  continuing 
a  plan  of  taxation  so  unjust  to  other  taxpayers  of  the  state.  Investiga- 
tions which  have  been  conducted  by  the  Interstate  Commerce  Commis- 
sion in  the  courts  leave  no  room  to  doubt  that  millions  of  dollars  are  paid 
back  to  shippers  in  rebates,  under  arrangements  deemed  advantageous, 
directly  or  indirectly,  to  both  the  railroads  and  the  favored  shippers.  That 
these  rebates  in  Wisconsin  alone  amount  to  vast  sums  of  money  annually 
is  beyond  dispute.  Not  one  dollar  of  this  sum  rebated  to  shippers,  and 
properly  a  part  of  the  gross  earnings  of  railroad  companies,  is  reported  to 
the  state.  That  a  valid  claim  exists  against  the  railroad  companies,  for 
the  amounts  so  withheld  from  their  reported  earnings,  does  not  admit  of 
question,  whatever  difficulties  lie  in  the  way  of  making  proof  of  the  same. 
I  do  not  believe  that  you  will  fail  to  follow  the  recommendations  of  the 
Tax  Commission  and  abandon  a  system  of  taxation  so  obnoxious  to 
every  principle  of  fairness  to  those  who  must  maintain  government. 

The  taxation  of  railroad  property,  as  of  all  other  property,  upon  its 
actual  value,  can  work  no  injustice  to  any  one.  The  effort,  by  those 
interested  in  preventing  the  adoption  of  the  ad  valorem  s)'stem  for  rail- 
roads, to  make  it  appear  that  the  value  of  railroad  property  cannot  be 
ascertained,  is  not  entitled  to  serious  consideration.  That  which  has  a 
sufficient  physical  existence  to  stand  as  security  for  the  loan  of  vast 
sums  of  money ;  that  which  is  represented  in  the  markets  of  the  world 
as  among  the  most  readily  salable  property ;  that  which  is  productive 
in  its  earning  capacity  of  an  enormous  annual  income,  has  all  of  the 
essentials  in  certainty  and  definiteness  that  property  requires  for  the 
purposes  of  taxation. 

In  ascertaining  the  value  of  railroad  property  the  average  value  of 
its  bonds  and  stocks  in  the  market  would  be  an  element  to  be  taken 
into  consideration.  If  it  were  taken  as  the  sole  basis  for  valuation,  the 
railroad  companies  ought  not  to  be  heard  to  complain  of  its  unfairness 
to  them,  because  they  levy  such  a  tax  upon  the  public  in  the  form  of 


314  AMERICAN  STATE  GOVERNMENT 

transportation  rates  as  will  produce  a  certain  income  computed  upon  the 
market  value  of  their  stocks  and  bonds,  in  addition  to  exacting  enough 
more  to  maintain  the  roadbed,  rolling  stock,  depots,  and  grounds,  in 
good  condition,  and  provide  an  increasing  surplus  ;  but  the  average  value 
of  the  bonds  and  stocks  should  not  be  taken  as  the  sole  method  of  ascer- 
taining the  value  of  railroad  properties  for  taxation.  The  State  Board  of 
Assessment  would  appraise  the  actual  value  of  the  tangible  physical 
property  of  railways.  In  addition  to  this,  the  value  of  the  franchise,  into 
which  there  enters  many  elements  embraced  in  the  corporate  power  and 
privileges  with  which  railroads  are  clothed,  must  be  reckoned.  Supple- 
menting all  these,  the  earning  capacity  of  the  property  would  constitute 
a  most  important  factor. 

As  stated  by  the  Supreme  Court  of  the  United  States  upon  this  sub- 
ject, "'  Business  men  buy  and  pay  for  that  which  is  of  value  in  its  power 
to  produce  income."  The  earning  power  of  corporate  property,  deter- 
mined under  the  rigid  system  of  accounting  which  admits  of  no  juggling 
of  the  figures  in  operating,  equipment,  construction,  and  like  elements 
of  the  accounting  system,  will  equip  a  board  to  ascertain  the  net  income 
which,  capitalized  at  the  average  interest  rate,  would  enable  those  charged 
with  official  responsibility  to  arrive  at  a  just  determination  of  the  taxes 
which  the  railroads  should  pay. 

Into  the  formation  of  the  judgment  of  every  assessor  in  fixing  prop- 
erty values  there  enters  many  elements.  The  location,  the  quality,  the 
appearance,  the  relation  of  the  property  to  adjoining  properties,  the  earn- 
ing capacity,  the  expense  of  maintenance  and  operation,  are  some  of  the 
complex  elements  which  enter  into  the  formation  of  the  assessor's  judg- 
ment of  the  value  of  every  piece  of  property  assessed  against  individual 
taxpayers.  So  with  the  State  Board  of  Assessment,  respecting  the  prop- 
erty of  railroads  and  other  public-service  corporations,  there  are  many 
elements  to  be  considered,  all  of  which  will  be  given  due  weight  by  the 
board  charged  with  the  responsibility  of  doing  justice  between  these  cor- 
porations and  individual  taxpayers  to  the  state. 

Acting  along  these  lines,  after  a  protracted  contest,  the  state  of  Michi- 
gan adopted  the  ad  valorem  system  of  taxing  railroads  and  other  public- 
service  corporations,  established  a  state  board  of  assessment,  ascertained 
the  value  of  railroad  property,  applied  to  it  the  same  rule  of  taxation 
which  is  applied  to  the  property  of  individuals,  resulting  in  an  increase 
in  the  taxes  on  railroad  property  of  that  state  of  thirteen  hundred  and 
sixty-six  thousand,  three  hundred  twenty-four  dollars  and  thirty-eight 
cents  ($1,366,324.38). 

The  taxpayers  of  this  commonwealth  were  very  patient  while  investi- 
gation was  being  prosecuted.  They  have  shown  great  forbearance  with 
delays  and  postponements  heretofore.  They  have  sustained  wrong  and 
injury  which  can  never  be  repaired.  They  have  carried  the  burden  of 
others  in  addition  to  their  own,  for  which  they  will  never  be  compensated. 


THE  STATE  ADMINISTRATION 


315 


They  have  paid  out  of  their  savings  the  taxes  of  the  public-service  cor- 
porations for  many  years.  It  is  their  due,  it  is  due  to  the  state,  that  these 
wrongs  should  end  here  and  now.  The  past  cannot  be  recalled.  The 
wrongs  inflicted  cannot  be  repaired,  but  there  is  lodged  with  this  legisla- 
ture the  full  authority,  and  upon  it  rests  the  binding  obligation,  to  deal 
justly  with  these  corporations  and  with  the  people.  This  duty  is  not  one 
which  may  be  shirked  or  evaded  or  postponed. 

Efforts  may  be  further  continued  to  obstruct  the  course  of  justice. 
These  failing,  as  a  last  resort  efforts  will  be  made  to  compromise.  There 
has  been  given  into  our  hands  a  trust  to  discharge.  Difference  of  opinion 
may  arise  in  the  performance  of  public  duty  upon  questions  of  policy. 
This  is  not  a  question  of  policy.  The  railroad  companies  of  this  state 
owe  the  state  more  than  a  million  dollars  a  year.  For  many  years,  be- 
cause of  the  postponement  or  defeat  of  legislation  requiring  them  to  pay 
their  proportionate  share  of  the  taxes,  the  other  taxpayers  of  Wisconsin 
have  paid  for  them  a  million  dollars  annually.  The  case  has  been  tried, 
the  hearing  has  been  full.  Judgment  has  been  given  again  and  again. 
Pledges  have  been  made  by  political  parties,  and  repeated  by  candidates 
for  office,  over  and  over  again.  The  question  is  not  an  open  one.  There 
is  no  opportunity  for  misunderstanding.  There  is  no  room  for  specula- 
tion. The  truth  is  ascertained.  The  truth  is  known.  It  is  lodged  in  the 
public  mind  to  stay.  The  people  want  a  million  dollars  a  year,  because 
that  is  the  sum  owing.  They  are  not  to  be  wheedled  by  any  soft  phrases 
about  "  conservatism."  There  is  nothing  to  compromise.  Equal  and  just 
taxation  is  a  fundamental  principle  of  republican  government.  The 
amount  due  as  taxes  from  railroads  and  other  public-service  corporations 
should  be  paid,  and  paid  in  full,  and  I  am  confident  the  legislation  to 
secure  that  payment  will  be  promptly  enacted. 

I  recommend  that  the  bill  formulated  by  the  Tax  Commission  in  ac- 
cordance with  their  report,  pursuant  to  the  law  creating  that  body,  and 
presented  by  them  to  the  legislature,  be  passed  promptly  ;  and  that  there 
may  be  no  uncertainty  I  now  say  that  a  measure  creating  a  state  board 
of  assessment  to  determine  the  value  of  railroad  property,  and  applying 
to  railroad  companies  and  other  public-service  corporations  the  same  rate 
of  taxation  which  other  taxable  property  pays  in  this  state,  will  be 
promptly  approved  by  the  executive,  if  given  the  opportunity. 

That  the  Tax  Commission  should  constitute  a  board  of  assessment,  in 
whole  or  in  part,  I  have  no  hesitation  in  recommending.  The  terms  of  the 
members  of  the  board  should  however  be  so  changed  as  to  expire  at 
intervals  of  two  or  more  years,  to  the  end  that  there  should  be  at  all  times 
men  upon  the  board  trained  in  its  work.  The  term  of  service  should  be 
from  six  to  nine  years,  which  will  enable  the  commission  to  acquire  such 
experience  as  to  become  more  and  more  proficient  in  their  duties  of  valu- 
ing corporate  property  and  mastering  all  the  complications  of  corporate 
accounting.    But  in  determining  the  value  of  railroad  property  and  the 


3l6  AMERICAN  STATE  GOVERNMENT 

property  of  other  public-service  corporations,  it  will  be  found  necessary  to 
place  at  the  command  of  the  board  the  expert  knowledge  of  a  competent 
civil  engineer  and  a  competent  accountant.  Men  skilled  in  these  lines  of 
work  command  good  pay.  The  railroad  companies  employ  the  best  talent 
available  in  each  of  these  departments.  The  state  will  be  placed  at  a  great 
disadvantage  in  assessing  and  collecting  taxes  from  public-service  corpo- 
rations unless  it  so  equips  its  Board  of  Assessment  and  Taxation  as  to 
meet  these  corporations  on  equal  terms  with  equal  talent. 

There  are  two  methods,  either  of  which  would  equip  the  board  for 
this  important  work.  They  might  be  authorized  to  employ  such  experts 
in  their  discretion  and  pay  them  a  reasonable  salary.  There  would,  how- 
ever, always  be  the  possibility  of  the  legislature  failing  to  provide  an 
appropriation  sufficiently  adequate  to  secure  this  assistance  for  the  board. 

This  important  work  might  be  crippled  under  the  plea  of  economy, 
which  the  corporations  would  adroitly  urge  through  their  many  agencies. 
This  danger  could  be  obviated  by  increasing  the  membership  of  the  com- 
mission or  Board  of  Assessment,  adding  thereto  a  civil  engineer  and  an 
expert  accountant.  In  undertaking  and  carr)-ing  forward  this  important 
work  there  would  be  found  constant  employment  for  such  a  commission. 
The  increase  in  expense,  arising  from  the  enlargement  of  the  board  by 
two  additional  members,  would  be  trifling  indeed  compared  with  the  in- 
creased revenues  of  the  state,  resulting  from  the  proportionate  taxation 
of  the  property  of  these  great  corporations  at  full  value.  The  Board  of 
State  Tax  Commissioners,  acting  as  the  State  Board  of  Assessment  for 
appraising  and  assessing  the  property  of  public-service  corporations,  is 
certain  to  become  the  most  important  body  in  our  entire  tax  system. 
We  are  therefore  bound  to  exercise  the  greatest  care  in  establishing  it 
upon  a  safe  and  permanent  foundation.  While  in  this,  as  in  all  things 
pertaining  to  the  public  service,  extravagance  in  expenditure  must  not 
be  permitted,  yet  there  can  be  no  more  certain  method  of  squandering 
the  public  money  than  in  mistaking  cheapness  in  the  ability  of  public 
servants  for  economy  in  the  public  service. 

In  establishing  a  state  tax  commission  charged  with  the  responsibility 
of  exacting  from  these  corporations  the  immense  sums  of  money  which 
they  have  successfully  and  wrongfully  withheld  from  the  state,  we  are 
imposing  upon  them  a  task  hedged  about  and  complicated  with  difficul- 
ties of  every  conceivable  kind  and  nature.  Their  course  will  be  ob- 
structed, their  work  will  be  subjected  to  the  most  searching  analysis,  it 
will  be  tested  in  courts,  and  the  state  will  be  shortsighted  and  wasteful 
of  both  time  and  money,  if  it  fails  to  afford  such  commission  the  very 
best  equipment  possible  for  the  great  undertaking  committed  to  it. 

Wisconsin  can  profit  by  the  experience  of  other  states,  some  of  which 
assess  the  property  of  corporations  through  a  commission  or  board  com- 
posed of  state  officers.  Such  boards  or  commissions  bring  to  their  duties, 
as  a  rule,  no  special  training  or  aptness  for  the  work,  and  can  give  but  a 


THE  STATE  ADMINISTRATION  317 

small  portion  of  their  time,  since  their  regular  duties  as  state  officers  must 
take  precedence ;  consequently  they  are  but  ill  prepared  to  confront  the 
able  accountants  and  engineering  experts  employed  by  the  corporations. 

There  is,  however,  one  merit  in  the  system  of  assessing  corporate  prop- 
erty through  commissions  of  state  boards  composed  of  state  officers,  and 
that  is,  they  are  directly  responsible  to  the  people  and  must,  with  each 
recurring  election,  defend  their  acts  as  commissioners  before  the  voters. 

In  other  states  the  boards  are  appointed  directly  by  the  executive  with 
the  concurrence  of  the  higher  branch  of  the  legislature.  Where  the  terms 
of  service  are  long,  the  commissioners  or  members  of  the  Board  of 
Assessment  become  expert  in  their  duties,  even  though  they  had  little 
technical  knowledge  when  appointed ;  and  this  method  is  preferable,  but 
it  is  open  to  the  objection  that  the  corporations  may  exert  an  influence 
in  the  appointments  and  confirmation  of  them  from  time  to  time,  and 
thus  influence  the  appraisal  of  their  own  property. 

It  has  been  suggested  by  an  eminent  writer  on  this  subject  that : 

The  safest  plan  for  organizing  a  state  commission  is  a  combination  of  ex 
officio  and  appointive  officers  with  equal  voting  powers.  Three  appointive 
members  with  terms  of  six  or  nine  years,  one  of  whom  is  appointed  from  two 
to  three  years,  will  have  a  sufficient  term  of  office  to  become  expert  in  these 
duties,  and  the  appointments  will  be  so  spread  out  that  the  character  of  the 
entire  board  cannot  be  changed  at  a  single  election  of  governor. 

Two  ex  officio  members,  the  most  important  officials  of  the  state,  namely 
the  governor  and  auditor  of  state  (or  attorney-general),  should  be  associated 
with  these  appointive  members.  These  officers  are  responsible  to  the  voters. 
The  appointed  members  should  give  their  entire  time  to  the  work  of  appraisal, 
but  no  assessment  should  be  valid  until  passed  upon  by  the  entire  board  of 
five  members. 

A  board  constituted  in  this  way  would  combine  the  elements  of  expertness 
and  public  responsibility.  The  appointed  members  and  the  ex  officio  members 
would  be  a  check  upon  each  other.  In  the  ups  and  downs  of  politics,  when 
popular  interest  lags  or  is  occupied  with  other  great  questions,  at  which  time 
the  ever-watchful  corporations  may  be  expected  to  slip  their  tools  on  to  the 
board,  the  permanent  and  balanced  character  of  the  board  would  prevent  them 
from  getting  control  until  such  time  as  the  attention  of  the  people  is  again 
aroused.  At  the  same  time  the  board  as  thus  constituted  would  deal  fairly  and 
honestly  with  all  corporations,  for  their  investors  also  are  a  part  of  the  people, 
and  they  will  be  represented  before  the  board  by  their  tax  experts. 

While  the  establishment  of  a  board  of  assessment  for  the  purposes  of 
assessing  the  property  of  public-service  corporations  upon  the  ad  valorem 
basis  will  be  resisted  by  the  corporations,  yet  when  adopted  by  the  legis- 
lature their  power  and  influence  will  be  exerted  to  secure  from  time  to 
time  the  appointment  of  such  men  to  the  board  as  will  be  most  favorable 
to  their  interests.  This  it  is  the  part  of  wisdom  for  us  to  understand  now, 
and  provide  against  in  so  far  as  possible.  Indeed,  the  representative  of 
one  of  the  leading  public-service  corporations  went  somewhat  farther  than 


3i8  AMERICAN   STATE  GOVERNMENT 

this  during  the  last  legislative  session  when  he  declared  that :  "  The  ad 
valorem  system  is  one  which  is  more  liable  to  be  affected  by  the  weak- 
nesses and  evil  elements  of  human  nature,  and  is  therefore  open  to  more 
criticism,  and  more  justly,  than  the  license-fee  system." 

Tlie  question  of  railway  taxation  is  a  practical  one,  and  it  is  expected 
that  as  public  officials  we  will  deal  with  it  in  a  practical  way.  As  men  of 
experience,  some  of  you  men  experienced  in  legislation,  you  will  under- 
stand, as  the  public  likewise  understands,  the  opposition  which  has  been 
made  by  the  railroad  companies  to  any  increase  in  their  taxes.  It  is  a 
matter  of  common  knowlejige  among  those  who  have  encountered  the 
railroad  lobby  that  this  opposition  was  so  determined  as  to  announce 
the  declared  purpose  of  the  railway  companies  to  increase  their  freight 
rates  enough  to  offset  any  increase  in  taxation.  The  ease  with  which 
this  menace  might  be  enforced  can  very  readily  be  seen.  An  increase 
in  the  fraction  of  a  per  cent  in  freight  rates,  or  a  slight  readjustment 
of  the  classifications,  would  enable  railroads  to  collect  from  their 
patrons  in  Wisconsin  more  than  enough  to  balance  any  increase  in 
their  taxes. 

Indeed,  since  legislation  has  been  pending  in  this  state  to  require  rail- 
roads to  pay  their  proportionate  share  of  taxation,  freight  rates  for  Wis- 
consin have  been  increased,  indicating  a  forehanded  determination  to  be 
prepared  against  legislation  to  equalize  taxation. 

It  becomes  apparent  at  once  that  legislation  compelling  the  railroads 
and  other  public-service  corporations  to  pay  their  proportionate  share  of 
the  taxes  will  fail  utterly  in  its  object,  unless  it  be  supplemented  with 
legislation  protecting  the  public  against  increased  transportation  charges. 

TENDENCIES   IN  RAILWAY  TAXATION^ 

By  Henry  C.  Adams 

In  searching  for  the  trend  of  railway  taxation  it  would  be  an  error  to 
assume  the  existence  of  a  separate  and  independent  system  of  corpo- 
rate taxes.  This  assumption  has  been  frequently  made  by  writers  ui)on 
American  finance,  but  in  so  doing  they  fail  to  distinguish  between  the 
underl}ing  jjrinciples  of  a  system  of  taxation,  on  the  one  hand,  and  the 
machinery  for  administering  that  system,  on  the  other.  So  far  as  methods 
of  assessment  and  collection  are  concerned,  it  is  true  that  railway  corpo- 
rations are  placed  in  a  class  by  themselves,  but  it  is  not  true,  speaking 
generally,  that  the  theory  of  public  contributions  api^licd  to  them  differs 
from  the  theory  which  is  applied  to  other  classes  of  property.  That  sys- 
tem of  taxation,  known  as  the  general-property  tax,  is  as  strong  to-day 

'  A  paper  read  before  a  joint  meeting;  of  the  Anierican  I'olitical  Science  Association  and 
the  American  Economic  Association  at  their  annual  meeting,  Chicago  University,  December 
30, 1904.    Reprinted  by  permission. 


THE  STATE  ADMINISTRATION 


319 


as  it  ever  was  in  the  history  of  our  country ;  indeed  it  is  stronger,  if  we 
are  to  judge  from  the  changes  that  have  taken  place  in  the  laws  of  the 
states  during  the  past  twelve  years. 

Distinction  in  Taxation  between  Railway  and  Other  Property 

A  glance  at  the  laws  of  railway  taxation  in  the  several  states  and  terri- 
tories gives  ample  support  to  the  claim  that  these  laws  fail  to  introduce 
any  new  principle  into  the  established  system  of  local  taxation.  Including 
the  District  of  Columbia,  and  excluding  Alaska  from  the  list,  local  govern- 
ment in  the  United  States  is  represented  by  fifty  states  and  territories. 
Of  this  number  only  two,  Rhode  Island  and  the  District  of  Columbia, 
make  no  distinction  in  the  matter  of  taxation  between  railway  property 
and  other  property  ;  that  is  to  say,  these  political  divisions  fail  to  provide 
special  methods  even  for  the  assessment  and  collection  of  railway  taxes. 

Thirty-nine  States  make  Railway  Property,  Personal  and 
Real,  the  Basis  of  Taxation 

There  next  comes  a  list  of  thirty-nine  states  which  make  the  general 
property  of  the  railways,  including  both  personal  and  real,  the  basis  of 
taxation,  but  which  provide  machinery  for  assessment  of  railway  property 
different  from  that  employed  in  the  assessment  of  general  property.  The 
character  of  this  administrative  machinery  is  of  no  importance  as  bear- 
ing upon  the  question  under  consideration.  Nor  does  the  fact  that  some 
of  these  states  make  an  assignment  of  railway  assessments  to  the  minor 
civil  divisions  through  which  the  railway  runs,  while  others  distribute  the 
money  collected,  and  still  others  keep  this  money  for  state  expenditures, 
bear  upon  the  problem  in  hand.  The  important  fact  is  that  the  system 
of  local  taxation  in  these  thirty-nine  states  expects  railway  property  to  pay 
for  the  support  of  government  an  amount  in  proportion  to  the  value  of 
the  property,  the  same  as  in  the  case  of  general  property.  These  thirty- 
nine  states,  like  the  two  already  mentioned,  making  forty-one  in  all,  are 
properly  included  within  the  jurisdiction  of  the  general-property  tax. 

With  the  Exception  of  Three  States,  Railways  are  taxed 

according  to  Value 

There  are  five  states  —  Delaware,  Massachusetts,  New  York,  Penns)l- 
vania,  and  Kentucky  —  which  tax  railway  property  according  to  its  value, 
but  assess  the  tax  to  the  value  of  stocks  and  bonds  rather  than  to  the 
value  of  real  and  personal  property.  In  all  cases,  with  the  exception  of 
Connecticut,  this  tax  upon  stocks  and  bonds  is  supplemented  by  other 
forms  of  taxation.  It  is  the  ad  valorem  and  not  tlie  specific  tax  that 
gives  character  to  their  taxing  systems.    It  thus  appears  that  forty-seven 


320  AMERICAN  STATE  GOVERNMENT 

out  of  the  fifty  states  and  territories  aim  to  tax  railways  in  proponion  to 
their  value.  The  remaining  states  —  Maine,  Maryland,  and  Minnesota  — 
have  adopted  a  system  of  specific  taxes,  making  gross  earnings  the  measure 
of  the  duty  of  railways  to  pay  for  the  support  of  government.  Two 
states  —  Vermont  and  South  Dakota  —  give  the  railways  the  choice  be- 
tween paying  upon  an  ad  valorem  or  a  specific  basis.  The  states  of  Ohio 
and  Texas  also  tax  railways  upon  the  basis  of  gross  earnings,  but  make 
this  as  a  supplementary  or  additional  contribution.  Five  states  adopt  the 
essentially  pernicious  method  of  supporting  their  railroad  commission  by 
means  of  a  special  tax  on  earnings.  Other  minor  differences  might  be 
mentioned,  but  they  would  not  affect  the  conclusion  that,  with  the  excep- 
tion of  Maine,  Maryland,  and  Minnesota,  railways  are  taxed  according 
to  the  value  of  their  property,  and  that  both  common-law  provisions  and 
constitutional  rules  relative  to  equity  and  justice  in  taxation  require  that 
they  pay  a  rate  equal  to  the  rate  of  other  property  upon  their  cash  or  par 
assessment*. 

The  Unit  Rule  is  not  a  New  Principle 

It  has  sometimes  been  claimed  that  the  application  of  the  unit  rule 
in  the  valuation  of  railway  property,  a  rule  which  has  received  the  ap- 
proval of  the  courts,  amounts  to  the  recognition  of  a  new  principle  of 
taxation.  With  this  opinion  I  cannot  agree.  The  unit  rule  is  nothing 
more  than  the  application  of  an  old  rule  of  law  that  property  must  be 
valued  according  to  the  use  to  which  it  is  put.  It  is  but  the  recognition 
of  the  fact  that  the  commercial  value  of  railway  property  depends  upon  its 
continuity  from  county  to  county  and  from  state  to  state.  It  is  the  logical 
result  of  the  expansion  of  commercial  properties  beyond  the  limits  of 
local  taxing  jurisdiction.  The  unit  rule  of  assessment  is  in  perfect  har- 
mony with  the  assumption  that  value  is  commercially  homogeneous,  and 
implies  no  criticism  upon  the  underlying  theory  of  the  general  property 
tax.  It,  like  the  laws  of  the  states  passed  in  review,  pertains  to  the  appli- 
cation of  the  general  property  tax  to  interstate  properties,  and  does  not 
suggest,  at  least  in  any  direct  manner,  that  the  value  of  a  railway  may 
differ  both  socially  and  industrially  from  the  value  of  a  factory,  or  that 
the  value  crystallized  in  the  property  of  a  railway  may  itself  be  subject 
to  analysis  and  classification  according  to  its  character  or  the  source  from 
which  it  arises. 

Not  only  does  the  recognition  of  the  unit  rule  of  valuation  in  itself 
imply  the  development  of  no  new  principle  in  the  taxation  of  corporations, 
but  its  assertion  by  the  courts  permits  the  application  of  the  general- 
property  tax  to  properties  which  have  previously  escaped  their  equitable 
share  of  public  Inudens.  This  certainly  is  true  of  the  decisions  in  the 
Ohio  express  cases,  which  enable  the  state  of  Ohio  to  collect  taxes  upon 
a  valuation  in  excess  of  the  value  f)f  the  physical  property  used  by  the 
express  companies  within   the  state.    The  laws   by  which   sleej^ing-car 


THE  STATE  ADMINISTRATION  321 

companies  and  other  persons  or  corporations  owning  rolling  stocks  are 
taxed,  furnish  many  illustrations  of  an  effort  on  the  part  of  legislators  to 
discover  some  other  method  of  levying  contributions  than  upon  the  basis 
of  valuation.  This  was  necessary  before  the  deduction  of  the  unit  rule. 
Since  the  decision  in  the  Ohio  express  cases,  however,  legislators  are 
provided  a  means  by  which  such  persons  or  corporations  may  be  taxed 
upon  a  value  in  excess  of  the  value  represented  by  their  physical  property 
within  the  state ;  and  I  think  we  may  confidently  expect  a  revision  of 
the  laws  for  taxing  express  companies,  sleeping-car  companies,  and  other 
companies  owning  transportation  facilities,  which  will  substitute  the  ad 
valorem  for  the  specific  rule  in  taxation.  Georgia  has  already  revised  her 
method  of  taxing  sleeping-car  companies.  From  whatever  point  of  view 
we  look  at  the  matter,  the  unit  rule  of  valuation,  so  far  from  implying 
the  disintegration  of  the  general-property  tax  as  applied  to  corporations, 
has  given  that  scheme  of  taxation  a  broader  field  for  its  application. 

Recognition  of  a  Franchise  Value 

The  courts  have  however  taken  one  step  which  may  prove  to  be  a 
point  of  departure  for  the  development  of  new  principles  in  the  taxation 
of  railway  corporations.  I  refer  to  their  recognition  of  a  franchise  value. 
It  is  not  necessary  to  go  into  the  details  of  these  cases  nor  to  discuss  the 
propriety  of  the  rule  accepted  for  the  measurement  of  franchise  values. 
The  significant  point  is  that  the  courts  have  taken  judicial  cognizance  of 
a  value  in  excess  of  what  may  be  termed  the  inventory  value  of  the  phys- 
ical properties.  This  being  the  case,  the  question  at  once  arises  as  to  the 
source  of  this  excess  or  surplus  value,  and  also  its  social  and  industrial 
quality  ;  and,  should  an  analysis  of  this  value  prove  it  to  be  in  any  way 
peculiar,  the  further  question  arises,  whether  the  principles  of  equity  and 
justice,  which  are  acknowledged  to  lie  at  the  basis  of  taxation,  may  not 
require  the  taxation  of  this  value  in  a  peculiar  manner.  To  answer  this 
question  calls  for  an  analysis  of  what  for  convenience  may  be  termed  the 
surplus  value  inherent  in  the  property  of  a  prosperous  railway,  and  it  is 
to  this  analysis  that  I  now  invite  your  attention. 

Surplus  Value  the  Product  of  Organization 

Speaking  generally,  the  value  of  the  intangible,  immaterial,  or  non- 
physical  element  of  an  industry  is  the  product  of  organization,  a  produc- 
tive principle  recognized  by  Adam  Smith,  the  importance  of  which  has 
grown  with  each  step  in  the  development  of  industr)'.  Such  an  observa- 
tion, however,  is  of  but  slight  importance,  for  commercial  organization  is 
itself  of  many  sorts  and  followed  by  various  results.  Our  analysis  will 
be  more  fruitful  if  we  substitute  for  so  glittering  a  generality  an  enumer- 
ation of  some  of  the  more  important  elements  to  be  found  in  surplus 
value  as  it  inheres  in  railway  properties, 


32  2  AMERICAN  STATE  GOVERNMENT 

Surplus  Value  —  the  Formal  Value  of  the  Franchise 

1.  This  value  covers,  in  the  first  place,  the  value  of  the  franchise, 
that  is  to  say,  the  value  of  the  right  to  be  and  to  act  as  a  corporation. 
An  assertion  of  a  franchise  value  as  a  distinct  form  of  value,  however,  is 
submitted  as  a  concession  to  legal  lore  rather  than  because  it  is  believed 
to  be  of  ver}^  much  importance.  It  is  undoubtedly  true  that  a  franchise 
carried  with  it  an  independent  value  when  the  right  to  be  and  to  act  as 
a  corporation  was  an  exclusive  privilege.  At  present,  however,  general 
corporation  laws  have  destroyed  whatever  value  pertained  to  a  franchise 
on  account  of  its  exclusive  character.  If  there  be. surplus  value,  it  must 
be  found  in  the  nature  of  the  industry  in  question,  or  in  the  relation 
which  that  industry  bears  to  the  principle  of  competition,  and  not  in  the 
fact  that  a  particular  body  of  men  are  at  liberty  to  exist  as  a  corporation. 
The  surplus  value  which  we  are  now  endeavoring  to  explain  is  something 
more  than  the  formal  value  of  the  franchise. 

Surplus  Value  —  a  Value  in  Excess  of  Inventory  Value 

2.  Holding  in  mind  the  business  of  transportation  by  rail,  this  value 
includes,  in  the  second  place,  the  possession  of  traffic  not  exposed  to 
competition,  as,  for  example,  local  traffic.  There  are,  of  course,  commer- 
cial limitations  to  the  value  accruing  to  a  railway  corporation  from  this 
source.  For  example,  the  rates  from  noncompetitive  business  are  more 
or  less  influenced  by  the  rates  for  competitive  business.  The  curtailment 
of  demand  through  excessive  charges,  also,  as  well  as  all  those  consider- 
ations which  find  expression  in  the  law  of  monopoly  prices,  act  as 
commercial  restraints  in  the  adjustment  of  local  railway  tarifi's.  But,  not- 
withstanding all  that  may  be  said  in  this  vein,  it  yet  remains  true  that 
commercial  considerations  offer  no  guarantee  of  just  and  reasonable  rates 
when  judged  by  ordinary  business  standards ;  and  the  margin  of  surplus 
earnings  thus  rendered  possible  becomes  the  basis  of  a  surplus  value,  that 
is  to  say,  a  value  in  excess  of  the  inventory  value  of  physical  elements. 

Surplus  Value — created  hy  Amalgamations  and  Consolidations 

3.  The  nonphysical  value  of  the  railway  includes,  further,  the  value 
which  arises  from  the  possession  of  traffic  held  by  established  connec- 
tions. The  fortunes  that  have  been  made  in  the  railway  business  during 
the  past  fifty  years  have  resulted  largely  from  the  organization  of  inde- 
pendent companies  into  great  railway  systems.  The  inij^ortant  point  for 
this  analysis,  however,  is  that  the  amalgamation  of  connecting  lines,  as 
well  as  the  con.solidation  of  competing  lines,  gives  to  each  mcmlDcr  of  the 
operating  system  thus  created  a  class  of  traffic  which  it  might  not  other- 
wise be  able  to  hold,  and  consequently  confers  upon  each  member  of  the 


THE  STATE  ADMINISTRATION  323 

system  a  value  which  it  might  not  otherwise  possess  ;  and  when  it  is 
remembered  that  the  rates  at  which  this  traffic  is  moved  are  not  exposed 
to  the  competition  which  would  exist  were  it  not  for  the  organization  of 
railway  properties  into  systems,  it  is  evident  that  this  element  of  value  is 
likely  to  be  of  considerable  importance.  From  the  point  of  view  of  the 
influence  of  competition  upon  the  earnings  of  railway  corporations,  the 
difference  between  the  so-called  competitive  and  noncompetitive  traffic 
is  less  than  commonly  supposed.  Whether  traffic  be  local  or  through, 
competition  is  no  guarantee  that  it  will  be  carried  for  what  it  costs  to 
render  the  service. 

Surplus  Value  —  created  by  Density  of  Traffic 

4.  The  intangible  value  includes,  in  the  fourth  place,  the  benefit  of 
economies  made  possible  by  the  increased  density  of  traffic.  This  state- 
ment rests  upon  what  is  universally  recognized  as  the  fundamental  busi- 
ness principle  of  railway  transportation.  It  means  that  the  growth  of 
population  and  the  consequent  increase  of  traffic  which  results  from  the 
growth  forces  a  value  into  the  treasuries  of  railway  corporations  which 
cannot  be  credited  to  the  superior  ability  of  those  by  whom  railways  are 
administered.  Were  this  business  exposed  to  the  influence  of  competi- 
tion, the  value  in  question  would  be  dissipated  to  the  public  through  a 
reduction  in  the  price  of  service.  For  many  reasons,  however,  this  is  not 
possible  in  the  case  of  the  business  of  transportation,  and  the  value  re- 
sulting from  economies  rendered  possible  by  the  increase  in  traffic  comes 
into  the  possession  of  the  corporation  rendering  the  service. 

Surplus  Value  —  created  by  Organization  and  Vitality 

5 .  Lastly,  the  intangible  value  of  a  railway  corporation  includes  a  value 
arising  on  account  of  the  organization  and  vitality  of  the  industry  which 
renders  the  service.  This  value,  consequently,  is  in  the  nature  of  an  un- 
earned increment  to  the  corporation.  It  may  be  said  that  all  industries 
are  interdependent,  and  that  ever)'  business  depends  for  its  prosperity 
upon  the  prosperity  of  those  who  are  its  customers.  This  is  undoubtedly 
true,  but  it  is  equally  true  that,  unless  all  industries  are  equally  exposed 
to  competition,  or  upon  the  same  basis  so  far  as  concerns  their  ability 
to  avail  themselves  of  the  advantages  of  monopoly,  some  will  be  able  to 
maintain  while  others  will  be  forced  to  give  up  the  value  that  accrues  on 
account  of  the  widespreaddevelopment  of  industrial  technique.  The  signif- 
icance of  this  observation  in  the  analysis  of  surplus  value  becomes  evident 
when  it  is  conceded  as  an  answer  to  the  claim  that  the  railways  have 
created  the  wealth  of  the  world  and  that  their  compensation  cannot 
therefore  be  too  highly  appraised.  It  is  a  mistaken  analysis  that  overlooks 
the  close  interdependence  of  all  the  agents  of  industrial  prosperity. 


324  AMERICAN  STATE  GOVERNMENT 

Surplus  Monopoly  Value  a  Social  Product 

If  the  above  analysis  of  the  origin  atid  nature  of  surplus  value,  as  it 
appears  in  the  case  of  a  prosperous  railway  corporation,  be  correct,  it  is 
evident  that  this  value  exists  because  it  fails  to  be  diffused  to  the  public 
through  the  agency  of  commercial  competition.  Were  competition  able 
to  keep  the  price  of  the  service  of  transportation  in  the  case  of  each  and 
every  railway  down  to  the  cost  of  the  service  rendered,  or  were  it  good 
policy  for  the  government  to  define  a  reasonable  rate  as  a  rate  which 
coincides  with  the  cost  of  service,  including  normal  profit,  no  such  value 
as  that  under  consideration  could  exist.  The  capitalization  of  railways, 
and  consequently  the  assessment  of  railway  property  for  the  purpose  of 
taxation,  would  tend  to  be  the  cost  of  reproducing  the  plant,  as  in  the 
case  of  manufacturing  properties,  whose  balance  sheets  are  continuously 
exposed  to  the  adjustments  of  competition.  This  means  that  the  surplus 
value  of  a  railway  corporation  is  monopolistic  in  its  origin  in  the  same 
sense,  though  not  for  the  same  reason,  that  the  capitalization  of  the  rental 
value  of  real  estate  is  monopolistic.  It  is  a  value  contributed  by  the  pub- 
lic to  the  corporation  because  of  the  imperative  character  of  the  public 
demand  for  transportation.  It  results  from  the  fact  that  increased  den- 
sity of  traffic,  due  to  the  increase  in  population  and  to  the  development 
of  general  commercial  activities,  provides  the  railways  with  an  ever-in- 
creasing opportunity  of  availing  themselves  of  the  productive  principle 
which  lies  in  organization.  The  relative  amount  of  this  surplus  value,  which 
should  be  credited  to  railway  managers  on  the  one  hand,  for  availing  them- 
selves of  the  opportunities  of  increased  economies,  and  to  the  public 
whose  industrial  activities  furnish  these  ever-broadening  opportunities, 
is  not  here  in  question. 

The  Public  a  Joint  Proprietor  with  Railway  Corporations 

The  important  fact  is  this,  that  a  portion  of  the  surplus  value  now  en- 
joyed by  railway  corporations  is  a  direct  contribution  from  the  public, 
and  that  competition  is  incapable  of  diffusing  this  value  through  a  reduc- 
tion of  the  price  of  the  service.  It  is  a  socially  produced  value,  and  the 
logical  application  of  the  principle  which  lies  at  the  bottom  of  the  institu- 
tion of  private  property,  namely,  that  he  who  produces  a  (hiiig  should  be 
its  proprietor,  will  lead  to  the  conclusion  that  the  public  is  a  joint  proprie- 
tor with  the  railway  corporations  in  the  property  which  they  control. 
This  at  least  is  the  question  which,  as  it  appears  to  me,  the  attempt  to 
secure  a  just  system  of  taxation  as  between  railway  property  and  other 
property  will  force  upon  the  consideration  of  the  courts,  and,  should 
the  courts  acknowledge  the  accuracy  of  the  analysis  here  suggested,  and 
extend  their  definition  of  property  to  include  a  quasi-public  property  as 
they  now  acknf)wledge  a  quasi-public  industry,  a  radical  modification  of 


THE  STATE  ADMINISTRATION  325 

the  system  of  taxation  becomes  imperative.  The  situation  disclosed  by 
this  analysis  is  one  for  which  the  theory  of  the  general-property  tax 
makes  no  provision.  That  theory  assumes  value  to  be  homogeneous, 
whereas  the  foregoing  analysis  makes  it  clear  that  this  is  not  true.  The 
tendency  in  railway  taxation  of  which  this  paper  speaks  is  not  to  be 
found  in  the  statutes,  but  in  the  necessities  of  the  situation.  If  my  analy- 
sis be  correct,  it  follows  without  question  that  the  underlying  principle  of 
the  financial  system  of  the  future  will  be  the  recognition  of  a  joint  pro- 
prietorship between  the  public  and  the  corporations  in  all  cases  where 
surplus  value  proves  to  be  a  permanent  feature.  This,  of  course,  assumes 
that  a  socialistic  program  will  not  be  realized. 

PROTECTION  OF  THE  STATE  TREASURY  ^ 
By  Governor  La  Follette 

Existing  laws  are  wholly  inadequate  to  insure  the  safe-keeping  and 
integrity  of  the  funds  and  securities  of  the  state  in  the  state  treasury. 
These  funds  and  securities  at  times  amount  to  a  number  of  millions  of 
dollars  and  always  are  of  great  monetary  value.  There  are  now  in 
its  vaults  approximately  $1,222,750  in  negotiable  bonds,  payable  to 
bearer,  held  in  trust  for  the  common-school,  normal-school,  university, 
and  agricultural-college  funds,  in  addition  to  large  sums  in  the  banks  of 
deposit  for  state  funds  located  at  different  points  throughout  the  state. 
Very  early  in  the  present  year  there  will  be  on  deposit,  and  under  the 
control  of  the  state  treasurer,  money  and  negotiable  securities  belonging 
to  the  state  of  the  value  approximately  of  $3,000,000.  The  moneys 
may  all  be  withdrawn  upon  check  signed  by  the  state  treasurer  alone,  and 
securities  all  be  negotiated  by  his  simple  indorsement.  It  will  be  admitted 
by  all  that  the  unlimited  power  to  dispose  of  the  funds  and  securities  of 
the  state  ought  not  to  be  lodged  in  a  single  individual  or  officer.  A  dis- 
honest official,  in  the  absence  of  a  legal  check  or  restraint  upon  him, 
might  easily  deplete  the  treasury  and  cripple  the  conduct  of  the  public 
business.  The  legislature  cannot  act  too  swiftly  in  correcting  these  de- 
fects by  the  enactment  of  efficient  laws  applicable  to  the  subject.  To 
this  end  it  is  suggested  that  laws  should  be  passed : 

I  St.  Providing  that  no  bond  or  other  negotiable  security  now  owned 
or  held  in  trust,  or  which  shall  hereafter  be  owned  or  held  in  trust,  by 
the  state  shall  be  transferred  except  by  the  joint  indorsement  of  the  state 
treasurer  and  Secretary  of  State. 

2d.  Providing  that  there  shall  be  indorsed  or  stamped  across  the  face 
of  all  bonds  or  other  securities  now  or  hereafter  owned  by  the  state,  the 
following :  "  This  bond  (or  other  security,  naming  it)  is  the  property 
of  the  state  of  Wisconsin  and  can  only  be  transferred   by  the  joint 

1  From  governor's  message  of  1905. 


326  AMERICAN  STATE  GOVERNMENT 

indorsement  of  the  state  treasurer  and  Secretary  of  State,"  or  other  words 
of  similar  import ;  and  likewise  upon  all  bonds  held  by  the  state  in  trust 
or  hereafter  so  held,  indorsed  with  the  words  :  "This  bond  (or  other  secu- 
rity, naming  it)  is  held  in  trust  by  the  state  and  can  only  be  transferred 
by  the  joint  indorsement  of  the  state  treasurer  and  Secretary  of  State," 
or  other  words  of  similar  import. 

3d.  Providing  that  all  bonds  or  other  negotiable  securities  hereafter 
purchased  or  becoming  the  property  of  the  state  or  coming  into  its  pos- 
session by  virtue  of  any  trust  shall,  at  the  time  of  such  purchase  or  of 
becoming  the  property  of  the  state  or  of  coming  into  the  possession  of  the 
state  by  virtue  of  any  trust,  immediately  be  stamped  by  the  state  treasurer 
across  their  face  with  the  designated  words. 

Provision  might  be  made  for  weekly  meetings  of  the  board  of  deposit, 
and  that  such  board  should  have  the  power  to  designate  state  deposits  as 
being  (a)  banks  of  deposit,  (/))  checking  or  working  banks. 

4th.  Providing  that  the  board  of  deposits  should  be  given  authority  to 
order  the  deposit  of  such  sum  as  it  may  deem  advisable  and  safe,  not 
exceeding  the  limit  now  prescribed  by  law,  and  that  thereupon  such  sum 
be  forthwith  deposited  in  the  bank  of  deposit  named. 

5  th.  Providing  that  neither  the  whole  nor  any  part  of  any  deposit 
made  in  a  state  bank  of  deposit  could  be  checked  out  or  withdrawn 
except  upon  the  order  of  the  board  of  deposit. 

6th.  Providing  that  all  moneys,  drafts,  or  bills  of  exchange  received 
into  the  state  treasury  shall  on  the  day  of  their  receipt  be  deposited  to 
the  credit  of  the  state  in  some  one  of  the  working  or  checking  banks  of 
deposit.  That  all  drafts  or  other  bills  of  exchange  upon  their  receipt  in 
the  state  treasury  shall  immediately  have  indorsed  or  stamped  across 
their  face  the  words,  "'  This  draft  (or  other  instrument,  naming  it)  is  the 
property  of  the  state  of  Wisconsin  and  can  only  be  transferred  by  the 
joint  indorsement  of  the  state  treasurer  and  the  Secretary  of  State." 

7  th.  Providing  that  warrants  on  the  state  treasury  be  paid  by  drafts 
on  some  one  of  the  working  or  checking  banks,  which  drafts  should  be 
signed  by  the  state  treasurer  or  assistant  state  treasurer  and  counter- 
signed by  the  Secretary  of  State  or  the  assistant  Secretary  of  State,  and 
no  money  should  be  withdrawn  from  such  working  banks  except  upon 
drafts  so  signed  and  countersigned. 

8th.  Providing  that  the  state  treasurer  at  the  close  of  business  on 
Saturday  of  each  week  furnish  each  member  of  the  board  of  deposits  a 
statement  showing  the  total  amount  of  receipts  and  disbursements  for 
the  preceding  week  of  each  fund  in  the  state- treasury,  and  the  balance 
on  hand  in  each  state  fund  and  in  each  of  the  state  banks  of  deposit  at 
the  close  of  the  week's  business. 

9th.  Providing  that  the  state  treasurer  should  \k-  n.'(|uiivcl  on  ihe  first 
day  of  each  month,  and  at  such  other  times  as  the  Secretary  of  State 
shall  require,  to  exhibit  to  him  for  his  examination  a  true  account  of  the 


THE  STATE  ADMINISTRATION  327 

receipts  and  disbursements  of  the  treasurer  for  the  preceding  month ; 
and  pro\iding  further  that  it  shall  be  the  duty  of  the  Secretarj'  of  State 
on  the  first  day  of  each  month,  or  as  soon  thereafter  as  practicable,  to 
examine  and  audit  the  accounts  of  the  state  treasurer,  state  board  of 
control,  state  board  of  university  regents,  and  state  board  of  normal 
school  regents,  and  to  report  to  the  executive  any  deficiency  or  irregularity 
in  such  accounts. 

A  number  of  state  officers  and  departments,  acting  in  the  line  of  pre- 
scribed duty,  from  time  to  time  receive  in  the  aggregate  large  sums  of 
money  for  fees,  and  upon  other  accounts  pursuant  to  law,  and  nearly  if 
not  all  pay  out  various  amounts  for  necessary  expenses.  The  statutes 
now  in  force  provide  for  no  appropriate  checking  or  report  as  to  these 
receipts  and  disbursements.  Some  provision  should  be  made  correcting 
this  defect.  These  accounts  should  be  carefully  examined  and  report 
made  thereon  at  stated  intervals.  The  examination  and  report  ought  to 
be  made  by  an  officer  who  is  independent  of  the  different  officers  and  de- 
partments whose  accounts  are  to  be  so  examined  and  reported.  It  would 
seem  that  the  commissioner  of  banking  would  be  the  proper  officer  to 
make  the  examination  and  to  report  the  results  thereof.  It  is  therefore 
recommended  that  the  commissioner  of  banking  be  required  by  law,  once 
in  three  months,  or  oftener  if  required  by  the  executive,  to  examine  the 
accounts  of  each  officer  and  state  department  receiving  state  moneys  or 
making  expenditures  thereof,  and  also  the  accounts  of  the  charitable  and 
penal  institutions  of  the  state,  the  normal  schools,  and  the  state  univer- 
sity, and  immediately  thereafter  make  full  report  thereof  to  the  Secretary 
of  State.  It  might  be  well  to  provide  also  that  these  accounts  be  so  ex- 
amined and  reported  upon  for  the  biennial  period  just  closed.  The 
accounts  of  the  commissioner  of  banking  should  also  be  examined  and 
reported  upon  in  the  same  manner,  but  by  some  officer  or  person  other 
than  himself.  This  work  would  necessarily  entail  upon  the  commissioner 
of  banking  the  burden  of  a  large  amount  of  additional  labor,  and  some 
provision  ought  to  be  made  for  the  employment  and  compensation  of 
the  necessar)'  help  to  do  it  promptly  and  efficiently. 


VI 
EDUCATION 

EDUCATION  AND  LOCAL  PATRIOTISM  ^ 
By  G.  W.  Curtis 

The  distinction  that  we  draw  between  primar}'  and  secondary,  or 
academic,  education  does  not  indicate  an  essential  difference ;  it  does 
not  mean  that  the  state  is  interested  in  one  and  not  in  the  other.  It  is 
a  distinction  of  convenience  only,  to  define  what  limits  it  may  be  wise 
to  prescribe  for  the  public  provision  of  education.  The  state  care  of 
education  is  taken  in  the  interest  of  the  public  welfare ;  and  of  the 
public  welfare,  and  of  the  necessary  provision  for  it,  the  state  is  itself 
the  judge.  The  state  of  New  York,  for  instance,  does  not  restrict  its 
provision  for  education  to  the  primary'  school.  It  includes  within  its 
beneficent  care  and  supervision  the  whole  system  of  colleges,  academies, 
and  secondary  schools,  not  indeed  to  the  same  degree  as  the  primary 
schools,  but  for  the  same  purpose,  namely,  the  public  welfare,  and  upon 
the  same  principle,  namely,  the  duty  of  promoting  it.  The  maxim  im- 
puted to  Jefferson,  —  the  best  government  is  that  which  governs  least, — 
like  all  such  absolute  generalizations,  in  order  to  be  true  must  be  inter- 
preted intelligently.  Applying  to  it  his  own  principle  of  strict  construc- 
tion, it  would  sweep  away  both  the  public  school  and  the  post  office, 
the  twin  columns  of  public  intelligence  upon  which  the  fabric  of  popular 
government  rests.  Jefferson  was  a  practical  statesman  just  in  the  degree 
that  he  disregarded  the  absolutism  of  his  own  maxim.  The  latest,  most 
thorough,  and  ablest  of  the  historians  of  his  administration,  Mr.  Henry 
Adams,  with  complete  justice  to  Mr.  Jefferson's  qualities,  shows  how 
comprehen.sive  was  this  disregard.  Mr.  Bancroft,  who  delighted  to  call 
himself  a  Jeffcrsonian,  pointed  out  to  me  but  a  few  years  since  that  Mr. 
Jefferson  in  his  last  message  to  Congress,  on  the  8th  of  November,  1808, 
recommended,  in  view  of  a  treasury  surplus,  that  the  revenue  should 
not  be  reduced,  but  appropriated  "  to  the  improvement  of  roads,  canals, 
rivers,  education,  and  other  foundations  of  prosperity  and  union."  The 
voice  is  Jefferson's  voice,  but  the  hands  are  the  hands  of  Hamilton. 

It  is  because  New  York,  in  common  with  her  sister  states,  holds 
with  the  old  Dutch  state  of  Zealand  that  "  education  is  the  foundation  of 

1  I'-rom  a  speech  delivered  at  Kingston,  New  York,  1891 

328 


EDUCATION 


329 


the  commonwealth,"  that,  while  providing  munificently  for  the  prirriary 
schools,  she  does  not  restrict  her  interpretation  of  education  to  the 
knowledge  conveyed  in  those  schools,  but  includes  within  its  rightful 
significance,  and  to  a  certain  degree,  the  secondarj'  schools.  It  is  with  the 
same  wise  view  that  the  legislature  at  its  late  session  made  an  appropri- 
ation for  the  system  of  university  extension,  which  is  simply  a  scheme  for 
bringing  the  college,  so  far  as  practicable,  to  citizens  in  every  part  of  the 
state  who  are  unable  to  go  to  the  college.  The  colleges  of  the  state,  in  con- 
cert with  the  university  of  the  state,  which  is  the  official  head  of  the  system 
of  higher  education,  unite  with  the  authority  and  aid  of  the  state  in  an 
organized  .system  of  lectures  and  examinations  to  extend  higher  education 
throughout  the  state.  Such  a  system,  indeed,  does  not  abolish  the  public 
school  nor  supersede  the  college  nor  give  to  its  students  the  advantage 
of  college  residence.  But  in  every  community  in  the  state  which  desires 
the  benefit  it  gives  to  the  graduate  of  the  public  school  who  is  already 
engaged  in  the  active  work  of  life  an  alluring  incitement  to  devote  his 
leisure  hours  to  study ;  and  thus,  by  opening  more  widely  diffused  oppor- 
tunities of  education,  by  bringing  the  good  tidings  of  larger  knowledge  to 
the  remote  village  and  the  farmer's  boy,  who  otherwise  must  lose  it,  it 
assures  a  more  educated  people  and  a  nobler  commonwealth.  No  recent 
legislation  upon  the  subject  is  more  important  and  significant.  It  is  an- 
other illustration  of  the  larger  comprehensive  and  sagacious  spirit  which 
is  placing  New  York  in  the  van  of  educational  progress. 

We  must  emancipate  ourselves  from  the  delusion  that  the  concern  of 
the  state  begins  and  ends  with  the  primary  school,  or  that  the  state  pro- 
vides for  the  education  of  all  its  children  that  they  may  be  able  only  to 
read  a  newspaper,  to  keep  an  account,  and  to  make  out  a  bill.  The 
public  end  of  education,  indeed,  is  not  to  make  accountants  or  engineers 
or  specialists  of  any  kind,  but  enlightened,  patriotic,  upright,  public-spirited 
citizens.  In  primary  education  we  give  the  children  keys  and  tools,  but 
our  duty  includes  showing  how  to  use  them.  To  teach  a  child  to  read 
is  indispensable,  but  to  teach  him  to  read  is  not  to  teach  him  to  read 
with  profit.  Yet  one  is  as  much  a  part  of  education  as  the  other,  and 
the  public  good  sense  that  sustains  the  school,  not  a  rigid  theor}'  of  the 
limited  function  of  the  state,  must  determine  the  limits  of  instruction. 
Moderation,  says  Bacon,  must  be  the  rule ;  but  an  occasional  excess,  he 
says,  is  wise. 

Higher  education  is  of  the  highest  concern  to  the  state,  because  higher 
education  is  only  more  education,  larger  knowledge,  completer  training. 
There  is  no  point  in  education  at  which  indispensable  knowledge  ends 
and  fanciful  knowledge  begins.  Pope's  sparkling  gibe,  "  a  little  knowledge 
is  a  dangerous  thing,"  is  a  caustic  fling  at  smatterers.  But  all  knowledge  is 
comparative.  The  knowledge  of  great  specialists  and  scholars  is  only  larger 
than  that  of  those  who  know  less.  The  contemporaneous  knowledge  of 
science  which  Pope  himself  revered  has  been  long  since  superseded, 


330 


AMERICAN  STATE  GOVERNMENT 


and  measured  by  the  science  of  to-day,  is  the  merest  little  knowledge 
which  Pope  derided.  Even  while  the  poet  was  writing  the  line,  the 
profoundest  scientific  scholar  in  England,  Sir  Isaac  Newton,  was  saying 
with  the  sublime  modesty  of  greatness,  "  I  do  not  know  what  I  may 
appear  to  the  world,  but  to  myself  I  seem  to  have  been  only  like  a  little 
boy  playing  on  the  seashore,  and  diverting  myself  in  now  and  then  find- 
ing a  smoother  pebble  or  a  prettier  shell  than  ordinary,  whilst  the  great 
ocean  of  truth  lay  all  undiscovered  before  me." 

Higher  education  means  only  more  education,  and  the  argument  for 
education  is  not  only  an  argument  for  the  primar)^  school,  but  for  the 
academy,  the  college,  and  the  university.  The  more  languages  a  man 
hath,  the  more  man  is  he.  If  it  be  well  to  know  a  little  Latin  or  a  little 
German  or  a  little  French,  it  must  be  better  to  know  more  of  them ;  and 
if  a  man's  mental  horizon  is  widened,  his  moral  powers  quickened,  and 
his  service  to  mankind  enlarged  by  conversing  with  the  creative  genius 
of  all  time,  by  familiarity  with  Homer  and  Dante  and  Shakespeare  and 
Cervantes,  his  manhood  will  be  the  more  ennobled  if  to  this  power  he 
can  add  the  skill  to  bind  the  sweet  influences  of  the  Pleiades  or  loose 
the  bands  of  Orion. 

Before  our  Civil  War  the  public  man  who  proposed  to  estimate  the 
value  of  the  Union  was  popularly  scorned  as  a  political  parricide.  He 
was  calculating  the  life  of  his  parent.  To  the  public  instinct  the  life  of 
the  Union  was  a  sacred  life,  and  therefore  incalculable.  Such  also  in  this 
country  is  the  value  of  education.  We  pay  it  instinctive  reverence.  In 
the  remotest  village  when  the  farmer's  boy  returns  to  his  native  hills  a 
scholar  of  renown,  I  have  seen  the  respect  that  follows  him,  as  if  every 
citizen  were  conscious  of  more  reasons  for  pride  in  the  village  and  for  a 
sense  of  greater  dignity  in  every  villager.  If  any  American  should  ask 
of  what  use  is  all  this  education,  the  question  would  be  as  bewildering  as 
if  the  traveler  along  this  river  should  ask  of  what  use  is  all  this  glorious 
landscape  of  the  Hudson,  of  what  use  to  know  that  it  was  the  gleaming 
pathway  of  Western  empire,  that  yonder  Hendrik  Hudson  sought  for  a 
shorter  passage  to  the  Indies,  and  that  holding  that  shining  water  the 
British  crown  hoped  to  hold  America.  What  could  Numa  have  answered 
if  Egeria  had  asked  him  what  was  the  use  of  loving  her .'  What  could 
Galileo  have  answered  if  the  Inquisition  had  asked  him  what  is  the  use 
of  measuring  the  courses  of  the  stars  ?  What  Shakespeare,  if  he  had 
been  asked  the  use  of  revealing  in  immortal  verse  the  secret  play  of  the 
human  soul  ?  What  shall  we  answer  if  we  are  asked  the  use  of  hearing 
the  tale  of  Troy  divine,  or  listening  to  Plato  in  the  garden,  to  Aristotle 
in  the  grove  ? 

Or  again,  what  is  the  reply  if  we  are  asked  what  is  the  use  of  tracing  the 
laws  that  govern  exchanges,  prices,  currency,  money  ?  What  is  the  use 
of  comparing  the  problems  of  state  socialism  and  nationalism  with  those 
of  individualism  and  the  old  laisscz  faircl    What  is  the  use  of  studying 


EDUCATION  331 

the  great  question  of  immigration,  and  of  deciding  whether  we  can  right- 
fully risk,  by  admitting  within  our  gates  vast  masses  of  unassimilated  and 
alien  ignorance  and  pauperism  and  crime,  the  interests  of  civilization  and 
liberty  which  have  been  committed  to  our  guardianship  ?  What  is  the  use  of 
understanding  ourselves,  our  situation,  our  powers,  and  our  duties?  What 
is  the  use  of  making  America  a  prouder  name  in  human  history,  because 
signifying  greater  beneficence  to  mankind,  than  Greece  whom  the  gods 
of  beauty  loved,  or  Rome  crowned  with  the  imperial  sovereignty  of  the 
world  ?  These,  and  such  as  these,  are  the  questions  we  ask  when  we  ask 
what  is  the  use  of  education  ?  Education  is  the  entrance  of  the  soul  into 
its  rightful  dominion  of  intelligence.  To  make  better  citizens  and  nobler 
men,  to  extinguish  ignorance,  disorder,  and  crime,  in  the  wisdom  that  comes 
of  knowledge  and  an  enlightened  conscience,^ —  for  this  your  academy  and 
all  your  schools  were  founded,  for  this  those  schools  should  be  evermore 
munificently  maintained.  As  plants  turn  instinctively  to  the  light,  the  human 
soul  turns  towards  truth,  and  every  school  that  we  wisely  open  ministers, 
however  humbly,  to  the  fulfillment  of  this  noblest  of  human  aspirations. 
Our  intelligence  is  the  divine  spark  within  us,  and  the  more  carefully  we 
cherish  it  and  fan  it  into  flame,  the  more  certainly  will  the  world  in  which 
we  live  be  enveloped  in  celestial  light,  and  human  life  fulfill  its  divine 
purpose. 

GOVERNMENT  OF  STATE  UNIVERSITIES  ^ 
By  Jacob  Gould  Schurman 

The  state-supported  universities  are  governed  by  boards  of  regents  or 
curators  or  trustees,  who  are  in  some  cases  elected  by  the  people  and  in 
others  appointed  by  the  governor  of  the  state.  I  now  proceed  to  inquire 
how  this  arrangement  harmonizes  with  the  idea  of  a  university. 

No  one  would  pretend  that  the  governing  board  of  a  state  university 
is  committed  to  any  dogmas  like  the  articles  of  faith  of  a  religious  denom- 
ination ;  yet  there  are  possibilities  of  oppression  or  restriction  for  the 
university  which  must  not  be  overlooked.  The  people  may  elect,  or  the 
governor  appoint,  regents  (or  trustees)  not  only  who  belong  to  a  particu- 
lar political  party,  but  because  they  belong  to  it.  They  may  be  all  Repub- 
licans or  all  Democrats,  or  all  of  some  other  political  stripe.  I  do  not 
know  that  such  a  thing  has  ever  actually  occurred  in  any  of  the  many 
states  which  now  have  state  universities,  and  in  most  of  them  it  would 
be  impossible.  But  I  make  the  extreme  supposition  in  order  that  we  may 
clearly  realize  the  force  of  the  objection  I  am  endeavoring  to  describe. 
Here  then  is  a  board  of  regents  made  up  wholly  of  men  who  belong  to 
one  political  party,  and  because  they  belong  to  it.  How  will  the  idea  of 
the  university  fare  in  the  hands  of  such  political  partisans  ? 

1  From  an  address  of  President  Schurman  to  the  National  Association  of  State  Univer- 
sities, 1909. 


332  AMERICAN  STATE  GOVERNMENT 

Before  attempting  to  answer  that  question  I  must  crave  your  indul- 
gence while  I  describe  another  hypothetical  situation.  The  university  is 
not  the  only  public  institution  supported  by  the  state.  There  are  many 
others,  including,  for  example,  hospitals  for  the  sick  and  asylums  for  the 
insane.  These  institutions  are  also  controlled  and  administered  by  boards 
of  managers,  who  are  generally  appointed  by  the  governor  of  the  state. 
Let  us  suppose  now  that  the  same  practical  considerations  which  led 
to  the  appointment  of  a  Republican  or  a  Democratic  board  of  regents  for 
the  state  university  necessitated  also  the  appointment  of  a  Republican  or 
a  Democratic  board  of  managers  for  the  state  insane  asylum.  How  will 
these  political  partisans  administer  the  trust  and  care  for  the  unfortunate 
wards  committed  to  them  by  the  sovereign  power  of  the  state .'' 

To  ask  such  a  question  is  to  answer  it.  These  men  will  perform  their 
public  duties  like  any  other  American  citizens  who  might  have  been 
selected  to  undertake  them.  With  one  exception,  of  which  I  shall  have 
more  to  say  in  a  moment,  the  fact  that  the  managers  are  all  of  one  polit- 
ical party  will  make  no  difference  in  their  administration  of  the  asylum. 
Whether  of  one  political  party  or  more,  or  of  no  political  party,  the  man- 
agers in  any  event  will  desire  to  conduct  the  public  business  committed 
to  them  with  reasonable  efficiency  and  economy.  And  the  members  of 
the  board,  however  constituted,  would  always  feel  that  this  is  what  the 
public  expected  of  them.  Even  a  board  composed  entirely  of  members 
of  one  political  party  would  not  consciously  and  deliberately  defy  or 
ignore  that  expectation.  But  such  a  board  is  always  exposed  to  one 
temptation  which  cannot  arise  in  a  board  differently  constituted.  A  board 
wholly  Republican  or  wholly  Democratic  is  pretty  sure  to  select  such 
officers  or  employees  as  it  appoints  from  its  own  political  camp,  and 
perhaps  on  the  recommendations  of  political  leaders ;  and  the  favoritism 
which  leads  to  the  appointment  of  such  candidates  is  apt  to  protect  them 
afterwards  against  the  just  and  salutary  ])cnalties  that  should  be  inflicted 
for  neglect  of  duty  or  incompetency  in  office.  In  this  way  the  adminis- 
tration of  a  state  asylum  may  be  seriously  impaired,  if  the  managers  be 
entirely  of  one  political  party.  And  to  some  extent  this  danger  is  immi- 
nent when  a  considerable  majority  of  the  managers  are  of  the  same  jiolit- 
ical  party.  In  the  best  administered  asylums  the  danger  is  avoided  l)y 
having  all  appointments  in  the  hands  of  the  superintendent  and  holding 
him  responsible  for  the  results. 

This  example  enables  us  to  measure  the  danger  to  which  a  state 
university  may  be  exposed  from  a  board  of  regents  who  are  political  par- 
tisans. The  vital  point  is  the  matter  of  appointments.  If  the  board  on 
its  own  motion  makes  appointments,  they  will  be  made  on  political 
grounds  or  on  other  grounds  foreign  to  the  life  and  spirit  of  the  univer- 
sity, and  the  institution  might  as  well  close  its  doons.  It  has  a  name  to 
live,  but  it  is  dead.  On  the  other  hand,  if  the  board  acts  only  on  nomi- 
nations made  by  tlie  president,  and  if  before  making  nominations  the 


EDUCATION 


333 


president  (who,  if  he  thinks  of  anything  but  the  merits  of  the  candidates, 
profanes  his  high  office)  also  consults  and  advises  with  the  dean  and 
members  of  the  faculty  who  profess  cognate  branches  of  learning,  then 
it  would  seem  to  matter  little  whether  the  members  of  the  board  of  re- 
gents were  all  men  of  one  political  party  or  of  none.  The  faculty  is  the 
university ;  and  if  its  members  are  selected  by  their  peers,  and  on  the 
basis  of  ability  and  scholarly  or  scientific  attainment  and  achievement, 
the  life  of  the  university  goes  on  inviolate.  Or,  rather,  it  would  go  on 
inviolate,  if  this  governing  board  of  political  partisans  did  not  choose  to 
interfere  at  another  point,  where  interference  is  at  any  rate  conceivable. 

Here  the  analogy^  with  the  administration  of  the  state  insane  asylum 
does  not  help  us.  For  the  managers  of  an  asylum,  however  intense 
their  own  political  convictions  and  sentiments,  cannot  conduct  a  propa- 
gandist campaign  or  make  converts  among  the  insane.  But  a  board  of 
regents  composed  of  political  partisans  might  conceivably  desire  to  use 
the  university  for  such  purposes.  These  ends  are,  however,  so  alien  to 
the  life  and  objects  of  the  university  that,  as  experience  happily  shows, 
even  a  partisan  electorate  would  not  tolerate  the  spectacle  of  such  a 
shameful  pen^ersion  of  functions  and  aims.  A  board  of  regents  which 
attempted  it  would  be  overwhelmed  with  obloquy  and  disgrace. 

A  board  of  political  partisans  might,  however,  with  more  prospect  of 
success,  interfere  with  the  teaching  of  some  professor  whose  views  were 
opposed  to  their  own  political  dogmas.  The  members  of  a  Republican 
board  might  resent  free-trade  teachings ;  and  a  sympathetic  exposition 
and  defense  of  socialism  might  bring  down  upon  the  head  of  the  pro- 
fessor the  objurgations  of  either  Republican  or  Democratic  regents. 
This  danger  is  a  very  real  and  serious  one  in  cases  in  which  the  mem- 
bers of  the  board  reflect  the  views,  sentiments,  and  prejudices  of  a  large 
majority  of  the  people  of  the  state.  A  new'spaper  campaign  is  inaugu- 
rated (or,  under  the  conditions,  inaugurates  itself)  against  the  "  heretical  " 
professors,  and  they  and  their  teachings  are  denounced  from  one  end 
of  the  state  to  the  other.  When  the  legislature  meets,  the  matter  is  made 
a  subject  of  legislative  investigation.  And  it  is  inevitable  that  the  funda- 
mental relation  between  the  university  and  the  state  should  be  thoroughly 
canvassed.  At  such  a  time  legislators  and  voters,  too,  are  likely  to  ask 
whether  the  state  should  vote  public  money,  whether  citizens  should  tax 
themselves  to  support  an  institution  which  is  instilling  into  the  minds  of 
the  picked  young  men  and  women  of  the  rising  generation  ideas  and 
theories  utterly  opposed  to  those  w^hich  they  and  their  fathers  have  long 
entertained  and  devoutly  cherished,  and  which  they  believe  to  be  essen- 
tial to  the  sound  life  of  the  body  politic  or  even  to  the  nobility  of  individual 
manhood.  This  is  the  supreme  crisis  for  the  state  university.  Freedom 
of  thought,  freedom  of  investigation,  freedom  of  teaching,  freedom  of 
publication,  —  this  is  the  soul  of  a  university.  And  dictation  from  the 
state  is  just  as  much  tyranny  as  dictation  from  the  church.    Truth  must 


334  AMERICAN   STATE  GOVERNMENT 

judge  itself ;  it  cannot  be  determined  by  counting  noses.  One  man  with 
God  is  a  majority.  Tlie  professor  must  be  left  free  to  follow  the  dictates 
of  reason  and  the  demonstration  of  evidence,  even  though  his  conclusions 
are  at  variance  with  the  beliefs  (or  prejudices)  which  the  mass  of  mankind 
regard  as  fundamental  truth.  And  if  a  state  university  cannot  insure  him 
that  freedom,  it  is  to  that  extent  not  a  university  at  all.  As  in  the  denom- 
inational university  the  last  word  would  be  spoken  not  by  the  intellect  but 
by  some  power  outside  it,  —  by  a  board  of  trustees,  by  a  legislature,  or 
by  a  majority  of  the  people  of  the  state. 

Like  other  institutions  the  state  university  is  on  trial.  The  supreme  test 
is  whether  the  people  of  the  state  7oiIt,  o/i  the  one  ha  fid,  tax  themselves  to 
support  it,  and,  on  the  other,  impose  upon  themselves  a  self-denying  ordi- 
nance to  leave  it  severely  alone ;  so  that  it  may  select  its  oivn  members  by 
the  application  of  its  oion  intellectual  standards,  and  the  me/nbers  thus  choseji 
may  be  absolutely  free  to  investigate,  to  teach,  and  to  publish  whatever  they 
believe  to  be  the  truth.  If  our  people  do  not  already  possess  this  concep- 
tion of  a  university,  they  must  be  educated  up  to  it,  for  a  university  can- 
not flourish  on  any  other  condition.  I  need  scarcely  point  out  that  the 
general  acceptance  of  this  view  would  be  greatly  facilitated  by  the  con- 
stant recollection  on  the  part  of  the  professors  of  the  maxim  that  freedom 
implies  obligation,  and  that  in  this  instance  the  obligation  imposed  is  that 
of  self-restraint,  along  with  the  courtesy  to  be  expected  of  gentlemen 
and  that  tact  which  mitigates  or  avoids  the  asperities  of  embarrassing 
circumstances. 

A  university  which  has  an  organic  connection  with  the  state  possesses 
not  only  the  advantage  of  state  support ;  it  has  the  privilege  and  the 
duty  of  serving  the  state.  Of  course  its  service  is  rigidly  limited  to  the 
educational,  scholarly,  and  scientific  interests  of  the  state.  But  in  these 
days  those  interests  are  very  extensive  and  very  diversified.  One  of  the 
most  important  is  the  provision  of  teachers  for  the  high  schools  and  nor- 
mal schools  of  the  state.  This  function  is  likely  to  increase  in  importance 
with  every  passing  year.  Our  secondary  and  elementary  schools  are 
inferior  to  similar  schools  in  France  and  Germany.  To  make  them  more 
thorough  and  efficient  we  need  better  teachers.  There  is  no  other  remedy. 
And  better  teachers  will  be  demanded  just  as  soon  as  communities  dis- 
cover that  this  is  the  only  way  to  reform.  These  teachers  must,  for  the 
high  schools,  be  furnished  by  the  universities.  And  a  state  university, 
which  is  the  crown  and  climax  of  the  educational  system  of  the  state,  has 
in  these  circumstances  a  unique  opportunity  and  privilege  which  any 
privately  endowed  university  must  envy.  Even  the  privately  endowed 
university,  however,  may  share  in  this  splendid  work.  And  it  is  its  mis- 
fortune —  I  will  not  say  its  fault  —  if  among  its  graduates  there  is  not 
a  considerable  number  who  intend  to  devote  themselves  to  the  teaching 
profession.  (Certainly  there  is  an  obligation  incumbent  on  the  state  uni- 
versities to  educate  teachers  for  the  schools  and  to  create  and  intensify 


EDUCATION 


335 


enthusiasm  for  the  teaching  profession.  From  the  point  of  view  of  the 
public  this  is  quite  as  important  as  graduating  lawyers,  physicians,  or 
clergymen. 

But  a  state  university  will  not  content  itself  with  any  object  short  of 
the  entirety  of  educational,  scholarly,  and  scientific  interests  of  the  state. 
It  has  in  this  respect  an  advantage  over  the  privately  endowed  university, 
—  an  advantage  reflected  in  the  constitution  of  the  governing  board,  to 
which  I  have  already  referred.  The  scope  of  the  privately  endowed 
university  is  narrower,  its  program  less  diversified,  than  that  of  the  state 
university.  It  is  in  the  state  universities  that  the  scientific  and  intellec- 
tual interests  of  the  community  are  reflected  in  their  entirety.  As  these 
universities  are  dependent  on  the  people  as  a  whole  for  their  support, 
they  are  sensitive  to  the  intellectual  needs  of  the  people  wherever  and 
whenever  they  arise.  There  is  no  work,  no  calling,  no  human  activity 
too  humble  for  their  consideration,  if  only  science  or  knowledge  can  be 
of  use  in  it.  On  the  other  hand,  as  the  people  support  the  university,  no 
section  of  the  community  will  tolerate  the  neglect  of  its  peculiar  problems. 
Hence  it  is  that  the  state  universities  have  such  a  multiplicity  of  de- 
partments and  comprehensiveness  of  curriculum.  Their  province  is  the 
totality  of  human  knowledge  and  its  application  to  the  life  and  work  and 
vocations  of  mankind.  Agriculture  is  cultivated  side  by  side  with  law, 
and  the  mechanic  arts  with  medicine.  The  action  and  reaction  of  a  uni- 
versity and  the  people  of  the  state  upon  each  other  is  mutually  advanta- 
geous. Of  course  the  people  are  aided  and  elevated  by  knowledge ;  but 
it  is  also  an  advantage  to  the  university  to  be  kept  in  close  touch  with 
concrete  scientific  problems  and  with  knowledge  that  is  useful ;  the  uni- 
versity is  thereby  saved  from  scholasticism  and  barrenness.  It  may  be 
said  that  this  work  is  utilitarian ;  but  if  so,  it  is  utilitarianism  which  is 
characterized  by  intellectual  service  to  mankind.  A  more  serious  objec- 
tion would  be  that  this  activity  of  the  university  in  practical  spheres  might 
atrophy  the  wings  of  reason  and  keep  it  from  soaring  into  the  heights 
of  speculation.  That,  however,  is  an  indictment  which  De  Tocqueville 
brought  against  American  democracy  before  the  state  university  came 
into  existence.  And  it  should  be  noticed  that  the  activity  which  the  state 
universities  exhibit  in  practical  affairs,  like  farming  and  engineering,  is 
itself  a  theoretical  and  rational  activity.  And  I  see  no  reason  why  facts 
concerning  crops,  stock,  railways,  and  factories  should  not  be  as  stimu- 
lating to  pure  reason  as  any  other  groups  of  facts.  Certainly  Darwin, 
the  greatest  scientific  speculator  since  Newton,  took  as  the  starting  point 
of  his  theories  the  data  gathered  by  gardeners  and  stock  breeders. 

The  attitude  of  our  people  towards  their  state  universities  is  a  sublime 
and  encouraging  spectacle.  It  is,  however,  as  wise  and  farsighted  as  it 
is  touching  and  impressive.  For  the  life  of  states,  like  the  life  of  individ- 
uals, is  dependent  on  foresight,  and  foresight  is  the  counterpart  of  that 
exact  and  systematic  knowledge  which  we  call  science,  of  which  the 


336  AMERICAN  STATE  GOVERNMENT 

university  is  the  organ  and  workshop.  The  best  guides  and  the  chief 
helpers  of  the  community  are  not  the  politicians  and  financiers,  who  fill 
the  public  eye,  but  the  scholars  and  the  scientists.  The  universities  are 
to  a  nation  what  eyes  are  to  an  animal.  And  since  in  our  republic  the 
federal  government  has  nothing  to  do  with  education,  it  devolves  on 
the  states  to  supply  the  universities.  Their  origin  and  support  can  no 
longer,  in  the  United  States,  be  left  to  the  caprice  and  uncertainty  of 
private  generosity,  helpful  as  that  generosity  may  be.  Education  from 
the  elementary  school  to  the  university  is  the  concern  of  the  state.  The 
majority  of  our  states  have  recognized  this  obligation  and  provided  state 
universities.  The  West  has  led,  but  the  East  is  following.  And  before 
many  years  a  state  without  a  state  university  will  be  an  anomaly  in  our 
Union.  For  the  rest,  I  assert  most  emphatically  that  a  state  university 
is  an  indispensable  organ  of  genuine  democracy. 

WORKINGMEN  AND  HIGHER  EDUCATION  ^ 

Any  organization  of  higher  education  which  is  based  on  the  assumption 
that  education  of  a  "  general "  kind  is  desired  or  needed  only  by  those 
entering  the  professions,  while  technical  education  alone  is  suitable  for 
persons  engaged  in  manual  labor,  is  fundamentally  mistaken.  It  is, 
of  course,  true  that  the  education  of  the  majority  of  the  former  may 
be  predominantly  of  the  "  general "  kind,  while  that  of  the  majority  of 
the  latter  may  be  predominantly  "  technical."  But  technical  and  general 
education  ought  not  to  be  distinguished  on  the  ground  that  they  are  fit 
for  different  classes,  but  because  they  stimulate  different  sides  of  the 
same  individual ;  and  in  our  opinion  a  man  who  will,  throughout  life, 
work  with  his  hands  needs  a  general  education  for  precisely  the  same 
reason  that  it  is  needed  by  a  specialist  like  a  lawyer  or  a  doctor,  in  order 
that  he  may  be  a  good  citizen  and  play  a  reasonable  part  in  the  affairs  of 
the  world.  Manual  labor  (except  when  accompanied  by  undue  pressure) 
does  not  in  any  way  disqualify  a  man  for  receiving  such  an  education, 
and  indeed  the  whole  principle  involved  in  the  absolute  distinction  which 
is  sometimes  made  between  physical  and  intellectual  work  is  open  to  the 
objection  that  it  rests  upon  an  unsound  psychology.  The  truth  is  that  the 
education  of  every  class  must  keep  two  objects  in  view,  because,  in  a 
democratic  community  every  man  and  woman  stands  in  a  twofold  relation- 
ship to  the  rest  of  society.  On  the  one  hand,  as  a  workman,  whether 
with  head  or  hand,  he  must  obtain  the  technical  qualifications  needed  to 
maintain  him  in  independence  or  to  advance  him  in  life.  On  the  other 
hand,  as  a  member  of  a  self-governing  nation  he  must  acquire  the  civic 
qualities  wliicii  enal)le  him  to  cooperate  with  his  fellows  and  to  judge 

1  From  Oxford  and  Working-Class  Education ;  being  the  Report  of  a  Joint  Committee  of 
University  and  VVorking-Class  Kcpresentatives  on  liie  Relation  of  the  University  to  the 
Higher  Education  of  Workpeople, 


EDUCATION  337 

wisely  on  matters  which  concern  not  only  himself  but  the  whole  country 
to  which  he  belongs.  In  the  words  of  a  workman,  a  student,  and  a  trade 
unionist : 

The  education  required  is  not  a  mere  bread-and-butter  educadon,  which 
will  only  make  the  worker  into  a  more  efficient  wealth  producer.  It  may  be 
very  good  for  the  commercial  prosperity  of  the  nation  that  our  workmen 
should  be  higher  skilled  and  more  capable  than  their  brethren  in  America  or 
in  Germany ;  but  when  education  has  merely  made  a  man  into  a  better  work- 
man, it  has  not  done  all  that  it  can  for  him,  nor  all  that  he  has  aright  to  expect. 
The  time  has  come  for  the  workingman  to  demand  a  share  in  the  education 
which  is  called  "  liberal  "  because  it  concerns  life,  not  livelihood ;  because  it  is 
to  be  desired  for  its  own  sake,  and  not  because  it  has  any  direct  bearing  upon 
his  wage-earning  capacity.  By  the  avenues  of  art,  literature,  and  history  it 
gives  access  to  the  thoughts  and  ideals  of  the  ages  ;  its  outward  mark  is  a  broad 
reasoned  view  of  things  and  a  sane  measure  of  social  values ;  in  a  word,  it 
stands  for  culture  in  its  highest  and  truest  sense.  This  "  liberal  "  education 
should  be  a  common  heritage.  But  in  this,  as  in  many  other  things,  the  working 
class  has  been  for  long  a  disinherited  class,  and  the  national  universities,  which 
are  the  natural  fountainheads  of  national  culture,  have  been  regarded  as  the 
legitimate  preserves  of  the  leisured  class.  This  state  of  things  has  not  only 
wronged  the  working  class ;  it  has  to  a  great  degree  sterilized  the  universities 
themselves. 


VII 
PROHIBITION 

THE   SALOON   AND   THE   LAW^ 
By  Governor  Folk 

The  liquor  traffic  should  be  regulated  by  strict  laws,  and  those  laws 
vigorously  enforced.  We  need  a  law  prohibiting  brewers  and  distillers 
having  an  interest  in  dramshops.  The  criminal  saloons  are  often  the 
brewery-owned  saloons.  Competition  between  breweries  compels  them  to 
take  a  low  class  of  men  and  set  them  up  in  business.  These  men  have 
no  sense  of  proprietorship  or  pride  in  running  a  decent  place,  and  these 
saloons  often  become  dens  of  vice  and  lawlessness.  Effective  local-option 
laws  for  counties,  towns,  and  cities  should  be  enacted. 

More  important  than  this,  however,  is  some  measure  to  secure  the 
enforcement  of  the  dramshop  laws  throughout  the  state.  We  have 
dramshop  laws  closing  saloons  on  Sunday,  and  otherwise  regulating  the 
liquor  traffic.  These  laws  have  been  enforced  for  the  past  several  years 
in  the  cities  of  St.  Louis,  Kansas  City,  and  St.  Joseph,  through  the  ex- 
cise commissioner  and  the  police  commissioners  appointed  by  the  gov- 
ernor. Outside  of  these  cities  the  state  has  no  power  whatever  to  enforce 
these  laws,  and  in  a  number  of  the  counties  the  dramshop  laws  are  openly 
and  flagrantly  violated.  1  have  suggested  as  a  remedy  for  this  condition 
a  state-excise-commissioner  law.  Several  states  have  such  a  measure, 
with  most  satisfactory  results.  There  has  been  a  state  excise  commis- 
sioner in  New  York  state  for  ten  years.  There  has  been  a  state  excise 
commissioner  in  the  city  of  St.  Louis  for  many  years,  and  no  one  would,  I 
think,  advocate  the  abolition  of  that  office  without  providing  something 
equally  as  good  in  its  place.  The  measure  proposed  would  not  interfere 
with  local  control.  County  dramshop  licenses  and  municipal  dramshop 
licenses  would  continue  to  be  issued  and  revoked  as  at  present,  and  by  the 
same  authorities.  The  excise  law  suggested  provides  for  a  state  license 
only.  There  is  no  state  license  under  the  present  statutes.  The  excise  com- 
missioner would  have  jurisdiction  only  over  the  state  license,  and  would 
have  nothing  to  do  with  the  county  or  municipal  licenses.  In  order  to 
insure  thorough  local  control,  the  state  license  should  be  issued  only  after 
the  county  court  has  approved  the  application  for  a  county  license.    The 

1  From  a  special  message,  April  9,  1907. 
338 


PROHIBITION 


339 


excise  commissioner  would  thus  have  no  power  outside  of  the  large  cities, 
where  the  approval  of  the  county  court  is  not  required,  to  put  a  man 
in  business  or  to  keep  a  man  out  of  business.  Either  the  county  court 
could  put  the  dramshop  keeper  out  of  business  by  revoking  his  county 
license,  or  the  excise  commissioner  could  revoke  his  state  license  in  the 
event  local  control  should  fail.  In  order  to  prevent  any  possible  abuse  of 
the  power  by  the  excise  commissioner,  the  circuit  courts  of  the  several 
counties  should  be  given  the  right  of  review  of  the  evidence  on  appeal 
by  any  person  aggrieved.  The  worst  that  abuse  of  power  on  the  part  of 
the  excise  commissioner  could  do,  would  be  to  deprive  some  county  of  a 
saloon  temporarily.  This  would  not  be  a  great  disaster.  Even  were  it  so, 
under  the  plan  proposed  the  circuit  court  could  soon  relieve  the  drought. 
Objection  has  been  made  that  a  state  excise  commissioner  might  build 
up  a  saloon  machine.  That  would  be  impossible,  for  the  county  courts 
could  revoke  the  county  license  of  a  dramshop  keeper  should  the  excise 
commissioner  attempt  to  indulge  him  in  lawlessness.  Two  thirds  of  the 
saloons  of  the  state  are  now,  and  have  been  for  years,  in  control  of  the 
governor's  appointees  in  the  three  large  cities  of  the  state.  No  one  can 
truthfully  say  that  there  is  now  any  machine  of  the  saloons  made  by  that 
control,  or  that  the  governor  has  used  his  power  in  that  respect  for  his 
personal  or  political  ends  in  any  way.  Under  the  proposed  law  the  gov- 
ernor could  not  build  a  machine  out  of  the  excise  power  if  he  wanted  to. 
Absolute  local  control  is  provided  for.  As  long  as  there  is  local  control 
of  saloons  in  any  county  there  will  be  nothing  for  the  excise  commissioner 
to  do  there.  It  is  only  when  there  is  no  local  control  that  he  comes  in. 
Where  there  is  local  self-government  of  saloons  the  excise  commissioner 
would  not  be  called  upon.  There  are  some  who  object  to  the  idea  of  a 
state  excise  commissioner  on  the  ground  of  one-man  power.  The  excise 
commissioner's  power  is  limited  by  the  county  courts  and  the  circuit 
courts,  and  to  be  used  in  connection  with  the  local  authorities.  He  would 
not  have  nearly  so  much  power  as  a  state  banking  commissioner,  with  the 
absolute  control  of  all  the  banks  in  the  state,  and  no  one  claimed  that  the 
banking-bureau  law  created  a  one-man  power.  Such  power  as  the  excise 
commissioner  would  have  would  be  for  the  enforcement  of  law.  If  a  one- 
man  power  is  needed  to  correct  lawlessness,  would  it  not  be  better  to  have 
one-man  power  to  enforce  the  law  than  to  tolerate  the  saloon  power  to 
disobey  the  law.  There  is  far  less  danger  in  official  power  to  execute  the 
laws  than  there  is  in  the  saloon  power  to  defy  the  laws  with  impunity. 
Those  who  concern  themselves  lest  some  man  be  given  too  much  power 
to  compel  obedience  to  the  statutes  of  the  state  relating  to  saloons,  do  not 
seem  to  be  at  all  disturbed  when  other  lines  of  business  are  proposed  to  be 
controlled  through  state  authority.  It  is  not  suggested  that  the  state  take 
absolute  control  of  all  the  saloons  of  the  state.  It  is  best,  as  the  proposed 
measure  does,  to  leave  the  control  locally  and  allow  the  law  to  be  enforced 
by  local  officials,  if  they  will  do  this ;  but  if  they  will  not,  then  the  state 


340  AMERICAN  STATE  GOVERNMENT 

protects  its  laws  from  violence.  The  excise  law,  instead  of  interfering 
with  local  self-government,  restores  it  where  it  has  been  superseded  by 
saloon  sovereignty. 

This  measure  is  not  unprecedented.  It  is  not  revolutionary.  It  is  in 
accord  with  the  well-established  policy  of  the  state  for  half  a  century  as 
to  interests  affecting  the  general  public.  To  illustrate:  When  a  child  is 
born  he  is  under  the  care  of  a  doctor  controlled  by  the  State  Board  of 
Health.  The  milk  and  butter  that  he  eats  and  drinks  are  under  the  con- 
trol of  the  State  Dairy  Commissioner.  Later  on,  the  dentist  that  fixes 
his  teeth  is  under  the  control  of  the  State  Dental  Board.  The  teacher 
that  instructs  him  is  licensed  by  the  State  Superintendent  of  Schools,  who 
may  revoke  the  license.  The  pharmacist  from  whom  he  obtains  his 
medicine  is  regulated  by  the  State  Board  of  Pharmacy.  The  barber  that 
shaves  him  is  regulated  by  the  State  Barber  Board ;  the  insurance  com- 
pany in  which  he  insures  is  regulated  by  the  State  Insurance  Department ; 
his  mines,  if  he  acquires  any,  are  regulated  by  the  State  Mining  Bureau  ; 
the  railroad  on  which  he  travels  is  regulated  by  the  State  Board  of 
Railroad  Commissioners ;  the  birds  that  he  hunts  are  looked  after  by 
the  State  Game  Warden  ;  the  fish  that  he  catches  are  propagated  by  the 
State  Fish  Commission ;  his  horses,  if  he  has  any,  are  subject  to  the 
State  Veterinary  Board  ;  his  factories  are  regulated  by  the  State  Factory 
Inspector ;  the  bank  where  he  deposits  his  money  is  controlled  by  the 
State  Banking  Department ;  the  corporation  in  which  he  may  have  stock 
is  regulated  by  the  Secretary  of  State ;  the  building  and  loan  association 
in  which  he  may  invest  is  regulated  by  the  Building  and  Loan  Supervisor ; 
his  beehives  are  regulated  by  the  State  Inspector  of  Apiaries ;  the  osteo- 
path who  treats  him  is  regulated  by  the  State  Board  of  Osteopathy ;  if 
he  makes  his  will,  the  lawyer  who  writes  it  is  licensed  by  the  State  Board 
of  Law  Examiners  ;  and  when  he  dies  he  is  buried  by  an  undertaker  regu- 
lated by  the  State  Board  of  Embalmers.  But  if  during  life  he  visits  a 
saloon  open  on  Sunday,  contrary  to  law,  he  finds  that  this  is  the  only  busi- 
ness affecting  public  morals  that  the  state  does  not  regulate,  because  some 
one  says  it  will  interfere  with  local  self-government.  What  inconsistency  I 
Why  is  it  that  the  plea  of  local  self-government  was  not  set  up  against 
the  state  regulating  the  mines,  the  railroads,  the  insurance  companies,  the 
banks,  the  dentists,  the  barbers,  the  beehives  ?  It  is  only  when  the  saloons 
and  gambling  interests  are  sought  to  be  brought  within  the  law  that 
local  self-government  is  invoked.  At  the  regular  session  of  this  assembly 
laws  were  enacted  placing  all  the  banks  of  lliis  state  under  the  control  of 
a  banking  commissioner ;  putting  the  beehives  under  the  State  Inspector 
of  Apiaries ;  placing  the  roads  under  the  supervision  of  the  State  High- 
way Engineer  ;  j^roviding  for  a  state  game  warden  to  enforce  the  laws  to 
protect  the  birds  of  the  air  and  the  fish  that  swim  in  the  water ;  providing 
for  state  control  for  the  weighing  of  grain  in  .ill  ])ul)lic  warehouses  ;  mak- 
ing foodstuffs  subject  to  the  inspection  of  the  State  Food  Commissioner. 


PROHIBITION  341 

There  was  nothing  heard  about  self-government  when  these  were  being 
considered.  But  when  it  is  urged  that  the  state  have  some  authority 
to  enforce  its  laws  against  the  liquor  interests,  the  situation  in  the  minds 
of  some  assumes  a  different  aspect,  and  the  cry  of  self-government  is 
raised,  although  real  self-government  is  in  no  way  affected  by  the  excise 
law.  Why  should  there  be  so  much  straining  at  the  excise  law,  when  all 
these  other  state  control  measures  have  been  swallowed  so  easily  ?  Either 
all  of  these  things  should  be  left  entirely  to  the  regulation  of  the  local- 
ities, or  the  saloons,  that  need  regulation  more  than  all  the  rest,  should 
likewise  be  regulated.  One  cannot  consistently  indorse  the  state  control 
of  these  and  then  deny  the  right  of  the  state  to  regulate  saloons  on 
the  plea  of  self-government.  There  is  just  as  much  self-government  in 
a  locality  regulating  a  bank  as  a  saloon.  Local  self-government  of  the 
kind  that  attacks  this  measure  is  not  often  heard  of  unless  saloon  sov- 
ereignty or  gambling  sovereignty  is  threatened  by  the  assertion  of  state 
sovereignty.  We  hear  nothing  of  local  self-government  when  banks,  rail- 
roads, and  mines  are  regulated  by  the  state  ;  but  it  becomes  frantic  when 
lawless  saloons  are  sought  to  be  controlled,  even  remotely.  The  saloons 
and  gambling  interests  cloak  themselves  in  self-government  and  insist 
that  the  state  has  no  right  to  step  in  and  make  them  obey  the  law.  Of 
course  the  state  has  done  this  very  thing  as  to  all  other  interests ;  but 
in  each  of  these  cases  the  state  has  exercised  the  right  without  question ; 
no  lawless  elements  were  involved.  If  the  saloons  were  here  asking  to 
be  regulated,  as  the  banks  have  come,  and  the  barbers  have  come,  and 
the  pharmacists  have  come,  and  as  the  saloons  would  come  if  they  desired 
to  obey  the  law,  what  reason  could  be  given  why  their  request  should  not 
be  granted  ?  It  could  not  be  denied  them  for  lack  of  precedent,  for  this 
is  the  only  interest  not  regulated.  The  mere  fact  that  they  do  not  come 
asking  for  measures  requiring  the  lawless  among  them  to  obser\'e  the 
law  is  all  the  more  reason  why  the  state  should  compel  obedience  to  its 
laws,  whether  they  wish  to  obey  or  not.  I  believe  the  liquor  interests 
should  be  made  to  obey  the  law,  just  as  the  bankers  and  barbers  and 
dentists  are  compelled  to  obey  the  law.  The  saloon  keeper  has  no  right 
to  demand  the  special  privilege  of  wanton  lawlessness.  I  believe  the  state 
should  say  to  this  interest,  "  You  shall  be  controlled  locally,  so  long  as  you 
are  controlled  locally,  but  you  must  do  business  according  to  law,  or  you 
shall  not  do  business  at  all." 

Conclusion 

These  are  the  only  subjects  embraced  in  the  call  convening  this  session. 
During  your  deliberations  occasion  may  arise  to  submit  other  matters, 
but  this  will  not  be  done  unless  I  consider  them  of  such  grave  importance 
as  to  demand  attention  at  once,  for  I  realize  after  your  arduous  labors 
of  the  regular  session  it  would  be  imposing  a  hardship  on  you  to  bring 
your  attention  to  other  than  measures  of  vital  consequence.    Some  of 


342  AMERICAN  STATE  GOVERNMENT 

the  subjects  I  have  spoken  of,  and  that  are  embraced  in  the  call  for  this 
session,  were  hastily  considered  by  you  in  the  regular  session.  They  are 
things  I  think  the  people  of  the  state  want,  and  which  I  believe  they 
should  have.  While  I  might  have  taken  refuge  behind  the  efforts  made 
at  the  regular  session  to  give  the  people  all  the  reforms  promised,  I  feel 
I  would  not  have  been  doing  my  full  duty  in  carrying  out  the  pledges 
made  to  the  people  by  such  a  course.  This  special  session  will,  I  trust, 
round  out  and  complete  the  work  of  reform  so  well  begun  at  the  regular 
session.  Permit  me  to  express  the  hope  that  your  deliberations  will  be 
pleasant  and  harmonious,  and  to  assure  you  of  my  cordial  cooperation  in 
every  endeavor  for  the  public  welfare. 

THE  NATION'S  ANTIDRINK  CRUSADE  ^ 
By  Ferdinand  Cowle  Iglehart 

In  two  thirds  of  all  the  territory  of  the  United  States  the  saloon  has 
been  abolished  by  law.  Forty  years  ago  there  were  3,500,000  people 
living  in  territory  where  the  sale  of  liquor  was  prohibited.  Now  there  are 
36,000,000  people  under  prohibitory  law.  Since  that  time  the  popula- 
tion of  the  country  has  scarcely  doubled,  while  the  population  in  prohibi- 
tion territory  has  increased  tenfold.  There  are  20,000,000  people  in 
the  fourteen  southern  states,  17,000,000  of  whom  are  under  prohibitory 
law  in  some  form.  In  1900  there  were  18,000,000  under  prohibition 
in  the  United  States  ;  now  there  arc  36,000,000.  In  eight  months  state- 
wide prohibition  has  cleared  the  saloon  from  an  area  as  great  as  that  of 
France.  In  that  area  there  is  a  solid  block  of  territory  320  miles  north 
and  south  by  720  miles  east  and  west,  in  which  on  the  first  day  of  next 
January  a  bird  can  fly  from  the  Mississippi  to  the  Atlantic  Ocean,  and 
from  the  boundary  of  Tennessee  to  the  Oulf  of  Mexico,  without  looking 
down  upon  a  legalized  saloon.  Great  ]iritain  and  Ireland  could  be  set 
down  over  this  space  without  covering  it.  There  would  be  10,000  square 
miles  of  "'  dry  "  territory  left  as  a  border. 

'J'his  is  not  the  first  wave  of  prohibition  that  has  .swept  over  the 
country.  Iwfly-four  years  ago  there  was  one  that  swept  over  the  north- 
ern states  with  as  great  violence  as  the  one  that  is  now  passing  over 
the  South.  Then  Maine,  New  Hamjxshirc,  Vermont,  Rhode  Island, 
Connecticut,  New  York,  Delaware,  Michigan,  Indiana,  and  Iowa,  by  acts 
of  their  legislatures,  forbade  the  manufacture  and  sale  of  intoxicating 
liquors  as  a  beverage.  Nine  northern  states  went  "  dry  "  in  a  single 
year,  the  year  1855. 

The  liquor  men,  dazed  and  frightened  at  the  revolution,  set  them- 
selves desperately  to  resist  it.  ]}y  one  jMetensc  or  another  there  was 
widespread  nullification  of  ])rnliil)iii(iii.    ( )iic  state  after  another  receded 

1  From  Review  of  Reincivs,  April,  lyoS.    Kcprintcd  by  jjcrmission. 


PROHIBITION  343 

from  its  radical  action,  until  nearly  all  adopted  the  system  of  license. 
So  that,  up  to  a  year  ago,  of  the  eighteen  states  that  had  tried  the  ex- 
periment of  prohibition,  only  three  —  Maine,  Kansas,  and  North  Dakota 
—  remained  in  the  ranks,  they  having  adopted  constitutional  prohibition. 
Will  the  present  prohibition  legislation  be  ephemeral,  like  that  of  half 
a  century  ago,  or  will  it  be  permanent  ?  There  is  every  reason  to  believe 
that  it  will  be  permanent.  There  were  more  elements  of  permanency 
in  the  earlier  movement  than  appeared  on  the  surface ;  for  during  all 
the  years  that  the  states  were  falling  out  of  the  prohibitor)-  column  the 
people  were  steadily  removing  the  saloon  by  "  local  option,"  till,  at  the 
time  there  were  but  three  prohibition  states  left,  the  liquor  traffic  had 
been  abolished  from  two  thirds  of  the  territor}^  occupied  by  one  half  of 
the  population  of  the  United  States.  Of  the  36,000,000  people  who 
have  expelled  the  saloon,  only  10,000,000  have  done  so  by  state  pro- 
hibitory laws,  and  26,000,000  have  effected  the  removal  by  local  option. 

Georgia,  the  Southern  Pioneer  of  Prohibition 

Last  summer  Georgia  became  the  first  southern  state  to  adopt  pro- 
hibition. At  the  close  of  the  Civil  War  the  free  negro  and  the  countr)^ 
saloon  were  bad  companions,  fostering  a  bad  civilization.  A  law  was 
passed  forbidding  the  sale  of  liquor  within  three  miles  of  a  church  or 
school.  Then  county  local  option  was  adopted,  which  drove  the  saloon 
from  the  farming  districts  and  towns  generally.  But  the  jug  trade  from 
the  "  wet "  into  the  "  dry  "  counties  became  so  great  and  annoying  that 
the  temperance  people  pushed  the  fight  successfully  into  counties  con- 
taining cities.  When  the  Georgia  legislature  met  in  July  last  there  was 
not  the  slightest  idea  in  the  mind  of  any  friend  or  foe  of  whisky  that  a 
prohibitory  law  would  be  enacted.  The  most  that  the  enthusiastic  friends 
of  temperance  had  hoped  was  that  a  bill  would  be  passed  allowing  the 
people  to  vote  on  the  question  at  some  future  time.  But  a  local-option 
bill  was  passed  in  the  Senate  by  a  vote  of  34  to  7,  and  in  the  House  by 
a  vote  of  139  to  39.  On  the  day  of  the  final  passage  of  the  bill  repre- 
sentatives of  religious  denominations  and  temperance  organizations  from 
all  parts  of  the  state  assembled  in  the  capitol  grounds  and  building, 
members  of  the  Woman's  Christian  Temperance  Union  being  very 
much  in  evidence.  When  the  result  was  announced  a  scene  of  indescrib- 
able enthusiasm  was  witnessed.  The  crowd  spontaneously  burst  out 
into  "  Praise  God,  from  whom  all  blessings  flow."  Withered-faced  old 
women  clapped  their  hands  and  shouted  aloud  for  joy ;  old  men  fell 
in  one  another's  arms  and  wept  like  children.  Seaborn  Wright,  the 
leader  of  the  prohibition  forces  in  the  assembly,  was  placed  on  the 
shoulders  of  men  and  carried  through  the  capitol,  while  the  throng  sang 
lustily  "  Gloria  in  Excelsis."  Governor  Hoke  Smith  promptly  signed 
the  bill  and  has  since  vigorously  enforced  it. 


344 


AMERICAN  STATE  GOVERNMENT 


The  Georgia  law  in  reality  affected  only  fifteen  counties,  as  135  of 
the  150  counties  of  the  state  had  already  gone  "  dry  "  by  local  option. 

Oklahoma's  Action 

There  was  a  very  fierce  contest  over  the  liquor  question  in  Oklahoma. 
Congress,  in  the  enabling  act,  required  prohibition  for  twenty-one  years 
in  the  Indian  Territor}'  section  of  the  new  state.  In  the  election  of  dele- 
gates to  the  constitutional  convention  the  liquor  question  was  one  of  the 
foremost.  Then  the  pressure  was  made  by  both  sides  on  the  delegates 
to  incorporate  or  leave  out  of  the  constitution  a  prohibitory  provision. 
The  convention  prepared  a  constitutional  provision,  but  made  it  necessary 
for  the  people  at  tlie  polls  to  determine  whether  they  would  make  it  a 
part  of  their  constitution  or  not.  After  an  exceedingly  exciting  contest 
the  prohibitory  provision  was  adopted  and  incorporated  into  the  consti- 
tution ;  and  so  Oklahoma,  the  first  state  of  the  new  centur\%  and  the 
youngest  of  Columbia's  daughters,  hastened  to  join  her  sister  Georgia 
in  the  abolition  of  the  saloon. 

Alabama  joins  the  Procession 

The  wires  had  scarcely  carried  the  word  that  the  President  had 
accepted  the  new  state  of  Oklahoma,  with  its  prohibition  amendment, 
when  the  legislature  of  Alabama  passed  a  state  prohibitory  law,  to  take 
effect  on  January  i,  1909.  The  original  excise  law  had  been  amended 
from  year  to  year,  allowing  privileges  of  local  option  to  special  locali- 
ties, till  the  saloon  had  been  driven  out  of  twenty  counties.  As  the 
sessions  of  the  legislature  are  only  quadrennial,  the  antisaloon  people 
determined  last  winter  to  make  the  best  of  their  opportunity  and  urge 
the  passage  of  radical  temperance  measures.  Laws  were  passed  allowing 
local  option  for  counties,  preventing  the  shipment  of  liquors  from  "  wet " 
into  "  dry "  territory,  compelling  temperance  instruction  in  the  public 
schools,  and  forbidding  the  sale  of  "  hop  jack  "  and  other  drinks  con- 
taining a  small  percentage  of  alcohol.  Governor  Comer  called  a  special 
session  of  the  legislature  last  November  to  consider  the  differences 
between  the  railroads  and  the  state.  He  did  not  make  any  mention  of 
the  temperance  question  in  his  message,  as  he  did  not  intend  that  it 
should  be  considered  until  the  regular  session  three  years  hence.  Be- 
cause he  did  not  make  mention  of  it  a  two-thirds  majority  was  required 
to  carry  such  a  measure.  When  the  members  arrived  at  Montgomery 
they  would  not  give  a  single  thought  to  the  raih-oads  till  they  had 
"  expres.sed  "  the  saloon  out  of  the  state  by  the  adoption  in  the  Senate 
of  the  House  bill  prohibiting  the  manufacture  and  sale  of  liquors  as  a 
beverage  by  a  vote  of  32  to  2. 


PROHIBITION 


State-Wide  Prohibition  in  Mississippi 


345 


In  Mississippi  the  country  saloon  was  spoiling  the  negro,  and  instead 
of  a  three-mile  limit,  as  in  Alabama,  the  people  pushed  the  saloon  five 
miles  away  from  a  church  or  school,  which  cleared  the  farm  districts  of 
the  crossroads  groggery.  In  1886  they  adopted  local  option  and  removed 
the  saloon  from  the  rural  districts  and  from  the  small  towns. 

When  they  came  to  their  constitutional  convention  the  Prohibitionists 
tried  very  hard  to  get  a  prohibitory  clause  in  the  new  constitution,  but 
the  Southern  people  were  so  bent  on  the  question  of  the  domination  of 
the  white  man  that  they  would  not  allow  any  other  one  to  interfere. 

Up  to  a  year  ago  the  people,  by  local  option,  had  driven  the  saloon 
from  6g  out  of  the  76  counties,  which  included  90  per  cent  of  the 
territory  of  the  state.  A  few  weeks  ago  the  legislature  met,  and  quietly, 
and  by  almost  a  unanimous  vote  in  both  Houses,  adopted  state  prohibi- 
tion, to  take  effect  on  the  first  day  of  January,  1909. 

North  Carolina  to  vote  this  Month 

It  seemed  a  race  between  North  Carolina  and  Mississippi,  to  see 
which  one  should  reach  the  goal  of  prohibition  first.  By  the  local-option 
laws  the  people  of  North  Carolina  had  expelled  the  liquor  traffic  from 
62  of  the  97  counties  of  the  state  and  from  all  but  30  towns  and  cities 
of  the  same,  99  per  cent  of  the  territory  being  "  dry."  On  Januar)'  28, 
this  year,  the  House  of  Representatives  at  midnight  passed  the  Senate 
bill  for  a  state  election  on  prohibition  the  last  Thursday  in  April,  and  on 
that  day  the  people,  without  doubt,  will  make  swift  work  of  the  abolition 
of  the  saloon  there.  Of  the  many  earnest  temperance  workers  Governor 
Glenn  is  the  most  prominent  and  influential. 

The  Movement  in  Tennessee  and  Kentucky 

Tennessee,  after  fourteen  years  of  hopeful  warfare  against  the  liquor 
trade,  on  February  i,  1907,  passed  the  Pendleton  liquor  law,  which  made 
the  Adams  law  general  throughout  the  state,  and  has  been  the  most 
powerful  factor  in  a  swift  movement  toward  the  abolition  of  rum.  There 
were  fierce  contests  for  the  abolition  of  the  liquor  traffic  in  the  cities  of 
Clarksville,  Bristol,  Knoxville,  and  Jackson.  In  these  cities  on  election 
day  men,  women,  and  children  marched  through  the  streets  singing 
temperance  and  religious  songs,  and  filled  the  churches  for  services  of 
prayer.  All  but  5  of  the  96  counties  of  the  state  are  now  "  dry,"  and 
only  3  cities  —  Memphis,  Nashville,  and  Chattanooga  —  remain  "wet." 

The  relation  of  Kentucky  to  the  whisky  business  is  a  matter  of  sur- 
prise to  the  whole  nation.  The  state  has  $160,000,000  invested  in  dis- 
tilleries.   Through  local-option  legislation  it  has  expelled  the  saloon  from 


346  AMERICAN  STATE  GOVERNMENT 

94  out  of  119  counties,  from  370  towns  of  the  425  towns  and  cities, 
and  from  97  per  cent  of  the  territory  of  the  whole  state.  The  bitterest 
fight  was  carried  down  into  Louisville,  the  headquarters  of  the  liquor 
forces.  Because  the  mayor  of  that  city  would  not  enforce  the  law  closing 
the  saloons  on  Sunday,  charges  were  preferred  against  him  and  Gov- 
ernor Beckham  removed  him.  The  fight  there  was  well-nigh  tragical.  It 
became  the  issue  for  the  next  municipal  election,  and  at  the  one  held 
last  fall  James  F.  Grinstead  was  elected  mayor,  defeating  Owen  Tyler, 
who  stood  for  a  repeal  of  the  Sunday-closing  law.  In  the  last  guber- 
natorial election  the  Antisaloon  League  forces  thought  .they  discovered 
a  secret  friendliness  between  the  Democratic  leaders  and  the  whisky 
forces  of  Louisville,  and,  though  these  leaders  flatly  denied  the  fact,  the 
suspicion  became  strong  enough  to  drive  thousands  of  temperance 
people  away  from  the  Democratic  party  and  elect  Governor  Augustus 
E.  Willson  and  all  the  rest  of  the  Republican  ticket  by  a  substantial 
majority.  The  jail  keepers  of  Kentucky  recently  appeared  before  the 
present  legislature  to  ask  for  a  special  appropriation,  assigning  as  the 
reason  that  the  closing  of  the  saloons  had  so  diminished  crime  that  they 
did  not  have  prisoners  enough  left  within  the  jail  walls  to  furnish  board 
money  to  apply  on  maintenance.  Kentucky,  like  Tennessee,  will  vote 
for  state  prohibition  whenever  the  people  care  to  do  so. 

In  the  Old  Dominion 

Virginia,  the  mother  of  states  and  statesmen,  is  trying  hard  to  keep 
the  swift  pace  the  South  has  set  toward  prohibition.  The  Mann  liquor 
law  gave  the  first  severe  blow  to  the  saloons  of  the  state.  It  removed 
them  from  the  rural  districts.  In  a  few  years  1000  saloons,  or  one  half 
of  those  in  the  state,  have  been  abolished.  Two  thirds  of  all  the  saloons 
now  open  are  found  in  3  cities,  and  one  half  of  all  the  "'  wet "  territory 
is  confined  to  Norfolk  and  its  vicinity.  Of  the  140  incorporated  towns 
120  are  "dry."  Of  the  100  counties  73  have  no  saloons.  Some  have, 
however,  a  dispensary  or  distillery  here  and  there.  There  are  46  coun- 
ties where  no  form  of  license  is  issued.  There  are  5  counties  in  the 
northern  neck  of  Virginia  in  which  the  total  number  of  the  black  popu- 
lation outnumbers  the  white,  and  from  which  the  saloons  have  been 
expelled,  which  furnish  the  most  marvelous  minimum  of  crime,  the  jails 
of  the  5  counties  having  only  3  prisoners. 

Of  the  1,000,000  inhabitants  of  West  Virginia  700,000  have  abolished 
the  liquor  traffic.  Of  the  55  counties  29  are  "dry,"  10  have  drinking 
places  in  but  i  town  each,  4  counties  have  saloons  in  but  2  towns  each, 
and  2  counties  have  salorins  in  3  towns.  The  constitution  of  the  state 
empowers  the  county  commissioner  to  grant  or  refuse  a  liquor  license. 
The  legislature  has  granted  to  the  councils  of  certain  cities  and  towns 
the  right  to  issue  licenses,  which  they  have  done. 


PROHIBITION  347 

Delaware  and  Maryland 

The  legislature  of  Delaware  in  March,  igoy,  provided  for  a  vote  on 
November  5  on  the  question  of  the  manufacture  and  sale  of  intoxicating 
liquors.  One  half  of  the  state,  the  counties  of  Kent  and  Sussex,  went 
"  dry  " ;  the  other  half,  rural  Newcastle  County  and  Wilmington,  retained 
its  rum. 

Maryland  has  expelled  the  saloon  from  one  half  of  its  area,  and  from 
the  environment  of  about  one  third  of  its  population.  Of  the  26  coun- 
ties 10  are  entirely  "  dry,"  4  are  completely  "  wet,"  and  the  rest  of  the 
counties  are  "  wet "  and  "  dry  "  in  spots.  Like  some  other  states,  Mary- 
land has  granted  special  local  temperance  legislation.  Each  county  or 
district  or  village  has  asked  for  special  laws.  There  is  a  marked  advance 
in  temperance  sentiment  and  action.  Increased  local-option  privilege  in- 
cluding the  residential  districts  of  cities  is  asked.  Cardinal  Gibbons  recently 
wrote  an  open  letter  which  is  significant ;  in  it  he  said,  "  I  believe  that 
the  right  of  people  to  determine  by  the  operation  of  local-option  laws 
whether  saloons  shall  or  shall  not  be  closed  in  their  respective  communities 
is  in  harmony  with  the  American  principle  of  self-government." 

The  "  Dispensary  "  in  South  Carolina 

South  Carolina  has  had  the  "  dispensary  "  system  in  the  sale  of  liquor 
for  fourteen  years.  It  is  a  system  of  state  control  of  the  liquor  traffic. 
In  1896  Senator  Tillman  secured  the  incorporation  of  the  dispensary 
into  the  state  constitution.  As  a  revenue  producer,  when  honestly  ad- 
ministered, the  system  is  a  success.  As  a  moral  measure  the  dispensary 
is  a  failure.  Its  record  of  vice  and  crime  shows  an  increase  over  the 
license  system.  The  total  excess  for  six  years  under  the  dispensary 
system  over  that  of  the  license  system  was:  assaults,  1080;  homicides, 
157  ;  and  violations  of  the  liquor  law,  2051.  For  the  six  years  following 
the  introduction  of  the  system  there  was  an  increase  of  40  per  cent  in 
assaults,  and  almost  100  per  cent  increase  in  homicides,  over  the  six 
preceding  years  under  license.  The  Carey-Cottigan  bill  killed  the  state 
dispensary,  but  as  a  compromise  it  allows  local  option  as  to  whether  a 
reformed  dispensary  or  prohibition  shall  be  maintained.  There  are  41 
counties  in  the  state,  23  having  dispensaries  and  18  being  ''dr}'." 

Local  Option  in  other  Southern  States 

The  local-option  law  was  put  into  the  constitution  of  Florida  in  1887. 
Of  the  46  counties  in  the  state,  ;^7,  have  prohibition  and  13  permit  the 
sale  of  liquor.  There  are  only  2  2  incorporated  towns  which  have  saloons. 
Laws  against  selling  in  prohibited  territory  are  very  stringent.  About 
three  fourths  of  the  people  in  the  state  live  under  prohibitory  law.  Gov- 
ernor Broward  is  one  of  the  strongest  enemies  of  the  saloon. 


348  AMERICAN  STATE  GOVERNMENT 

The  supreme  court  of  Louisiana  has  just  rendered  a  decision  which 
guarantees  the  efficiency  of  the  local-option  bill  amended  in  1902.  Under 
that  law,  of  the  59  parishes  in  the  state  24  have  outlawed  the  saloon, 
and  many  other  sections  of  the  state  have  done  the  same.  The  strong- 
hold of  rum,  of  course,  is  New  Orleans,  with  its  325,000  population  and 
its  2000  drinking  places.  Notwithstanding  this  influence,  two  thirds  of 
the  territory  of  the  state  has  voted  for  prohibition. 

Texas,  with  its  enormous  area  and  almost  3,000,000  of  population, 
has  waged  a  terrible  battle  against  the  bottle.  Local  option  for  many 
years  has  been  very  strong  in  the  state,  driving  the  saloon  from  one 
county  after  another.  The  temperance  people  are  not  well  pleased 
with  the  Baskin-McGregor  law,  w;hich  they  claim  is  rather  friendly  to 
the  liquor  interests.  Of  the  243  counties,  147  are  entirely  "dry,"  51 
are  partly  "dry,"  and  45  permit  the  sale  of  liquor.  It  is  thought 
that  seven  tenths  of  the  voting  population  of  the  state  will  be  ready 
to  record  itself  in  favor  of  state  prohibition  when  the  proposition  shall 
be  presented. 

In  Arkansas  the  people  vote  by  wards,  townships,  and  counties  on  the 
question  whether  liquor  shall  be  sold  or  not.  They  also  have  a  right  by 
petition  to  forbid  a  saloon  within  three  miles  of  a  church  or  schoolhouse. 
A  majority  vote  of  all  the  inhabitants  is  required,  which  includes  mothers, 
wives,  sisters,  and  daughters  over  eighteen  years  old.  The  legislature  a 
year  ago  abolished  crossroad  country  saloons,  stopped  liquor  salesmen 
from  going  into  prohibition  territory  with  their  goods,  and  the  wholesale 
houses  from  advertising  liquors  in  papers  and  circulars  in  territory  where 
the  sale  of  liquor  is  forbidden  by  law.  Of  the  75  counties,  58  are  "dry." 
Eighty  per  cent  of  the  territory  of  the  state  has  expelled  the  saloon. 

The  heroic  stand  which  Governor  Folk  took  as  prosecuting  attorney 
and  as  governor  against  the  lawless  elements,  not  sparing  the  saloon, 
has  had  very  much  to  do  with  the  im]Drovement  in  temperance  sentiment 
in  Missouri.  That  state  has  a  local-option  law,  with  a  county  unit  except- 
ing cities  of  2500,  which  vote  independently.  In  "  wet  "  territory  license 
may  be  obtained  on  a  petition  of  one  half  of  the  taxpayers  or  upon  the 
petition  of  two  thirds  of  the  real-estate  owners  in  a  block.  Of  the  114 
counties,  47  are  now  "  dry."  Within  the  past  three  years  700  saloons 
have  gone  out  of  business  in  St.  Louis  alone,  as  a  result  of  Governor 
Folk's  stringent  enforcement  of  the  Sunday-closing  law. 

The  Campaign  in  thk  Middle  West 

In  1880  Kansas  incorporated  iM-ohil^ition  in  its  constitution.  Directly 
opposite  opinions  of  the  success  of  liie  law  are  held.  The  liquor  dealers 
are  greatly  distressed  over  the  failure  of  the  law,  and  the  people  of  the 
state  generally  hold  that  it  is  a  success.  Governor  Hoch,  of  Kansas,  in  a 
recent  letter,  says :  "  I  believe  prohibition  has  been  a  great  benefit  to  the 


PROHIBITION  349 

state  financially,  intellectually,  and  morally.  The  state  has  $145,000,000 
in  its  banks,  $83  per  capita;  pauperism  is  practically  unknown  ;  the  prison 
has  but  little  more  than  when  the  state  had  one  half  its  population." 

Ohio  has  always  had  strong  temperance  sentiment.  It  was  aroused  in 
1873  by  the  women's  crusade  at  Hillsborough  under"  Mother  "Thompson, 
which  was  the  birth  of  the  Woman's  Christian  Temperance  Union.  In 
1883  there  was  a  canvass  of  a  state-prohibition  amendment  to  the  con- 
stitution, in  which  a  majority  of  those  voting  on  the  question  were  for 
prohibition,  but  the  proposition  failed  because  a  majority  of  all  votes  cast 
for  the  candidates  on  the  ticket  was  required  to  secure  the  passage  of 
,  the  amendment.  The  worst  enemy  the  saloon  in  Ohio  and  America  has, 
appeared  in  1893  when  the  Antisaloon  League  was  organized.  Under 
the  leadership  of  Governor  Foraker  the  Dow  tax  law  was  passed  in 
1886,  which  is  now  in  operation.  In  1888  the  Beatty  township  local- 
option  law  was  passed;  in  1902  the  Beal  law,  giving  local  option  to 
cities  and  villages  as  a  whole,  was  passed;  in  1904  the  Brannock  law, 
and  in  1906  another  local-option  law  for  residential  districts  in  cities. 
Under  these  laws  490  villages  and  cities  have  expelled  the  saloon.  Of 
the  1376  townships,  1150  have  forbidden  the  liquor  traffic,  and  over 
400,000  people  in  the  residential  sections  of  the  great  cities  have  abol- 
ished rum.  About  68  per  cent  of  the  territory  is  now  "  dry."  The  Anti- 
saloon  League  people  of  Ohio  effected  a  political  revolution  which  was 
more  marked  than  the  one  which  took  place  at  the  last  election  in  Ken- 
tucky. It  was  the  defeat  of  Governor  Herrick  on  the  Republican  ticket 
by  Governor  Pattison  as  a  punishment  for  his  hostility  to  the  local-option 
bill,  and  the  election  of  Lieutenant-Governor  Harris  and  the  whole  Re- 
publican ticket  by  40,000  majority  as  the  reward  for  their  pronounced 
friendliness  to  the  bill.  Governor  Harris,  who  is  now  executive  of  Ohio, 
is  one  of  the  most  persistent  enemies  of  the  saloon.  A  few  weeks  ago 
the  Rose  bill,  extending  local  option  to  counties  as  a  unit,  passed  both 
houses  of  the  legislature  and  became  a  law,  under  which  it  is  understood 
that  70  out  of  the  88  counties  of  the  state  will  expel  the  saloon. 

The  people  of  the  Hoosier  State  are  about  as  enthusiastic  on  the 
subject  of  temperance  as  they  are  in  Ohio.  In  Indiana  the  reformers 
have  their  victories  through  the  Moore  law,  which  forbids  the  saloon  by 
a  popular  remonstrance.  By  its  use  219  townships  and  27  city  wards, 
considerably  more  than  one  fifth  of  the  population  of  the  state,  have 
banished  their  saloons.  By  these  remonstrances  750  saloons  have  been 
either  closed  or  prevented.  There  are  now  683  "  dry "  townships  out 
of  a  total  of  1016.  The  5000  saloons  are  confined  to  333  townships; 
and  in  72  out  of  92  counties  the  majority  of  the  voters  have  recorded 
themselves  against  the  saloon.  The  drastic  "  Blind  Tiger  "  law  has  been 
of  great  service  to  the  reformers.  Governor  Manly  is  one  of  the  most 
enthusiastic  and  uncompromising  enemies  of  the  liquor  traffic  in  the 
United  States. 


350  AMERICAN   STATE  GOVERNMENT 

The  liquor  power  is  very  strongly  intrenched  in  the  state  of  Illinois. 
Chicago  has  as  many  saloons  as  all  of  the  fourteen  southern  states  com- 
bined. Until  the  passage  of  the  local-option  bill  about  a  year  ago  there 
was  nothing  but  a  city  and  village  dramshop  law,  and  the  people  had  no 
voice  on  the  saloon  question.  Under  the  new  law  the  people  of  every 
township  in  the  state  may  vote  upon  the  question  of  saloon  or  no  saloon 
in  the  entire  township.  A  large  number  of  towns  and  cities  voted 
"no  license"  at  the  election  last  autumn;  and  within  a  year  i6  "dry" 
counties  have  been  added  to  the  lo  which  already  existed,  making  26  in 
all.  The  saloon  has  been  expelled  from  the  residential  districts  in  cities. 
The  Board  of  Aldermen  of  Chicago  a  few  weeks  ago  refused  to  issue 
license  to  sell  liquor  to  a  district  one  square  mile  in  extent  in  the  south- 
western portion  of  the  city,  and  it  is  understood  that  there  are  at  least 
ten  square  miles  of  territory  inside  the  city  limits  of  Chicago  where  the 
saloon  is  forbidden  by  law. 

The  enormous  brewery  interests  of  Milwaukee  put  up  a  desperate  fight 
for  the  possession  of  the  legislature  of  Wisconsin  a  year  ago,  on  the 
platform  of  the  repeal  of  every  restrictive  law,  but  failed.  A  residence- 
district  option  bill  passed  the  legislature  almost  unanimously.  There  is 
not  a  county  in  the  state  entirely  "  dry,"  but  local  option  in  towns  and 
cities  has  banished  the  drink  traffic  from  one  half  of  the  geographical  ter- 
ritory of  the  state,  from  708  of  the  1454  towns  and  cities. 

Michigan  is  peninsular,  with  much  marshy  ground ;  there  is  only  one 
"dry"  county  out  of  the  85  in  the  state,  and  there  are  but  50  towns 
and  cities  out  of  412  that  have  abolished  the  saloon. 

The  people  of  Minnesota  have  a  township  local-option  law,  and  an 
option  for  municipalities  organized  under  a  village  charter.  One  fourth 
of  the  525  municipalities  of  the  state  do  not  allow  the  sale  of  liquor. 
Twelve  hundred  of  the  1800  organized  townships  have  no  saloons.  Four 
hundred  of  the  600  remaining  "  wet "  townships  have  no  saloons  except 
those  in  the  incorporated  villages.  About  45  per  cent  of  the  population 
live  under  prohibitory  law.  Minneapolis  has  a  patrol-limit  system,  which 
confines  all  the  saloons  within  a  small  section  in  the  business  district  and 
forbids  the  sale  of  intoxicants  anywhere  else.  The  most  important  feature 
of  the  temperance  question  in  Minnesota  is  the  strict  enforcement  of  the 
excise  laws.  Mayor  Robinson,  of  St.  Cloud,  was  removed  from  office  for 
a  failure  to  close  the  saloons  on  Sunday.  The  decision  of  the  supreme 
court  frightened  every  mayor  and  officer  of  the  law,  and  the  result  is 
that  St.  Paul,  Minncai)olis,  and  every  licensed  city  and  town  of  the  state 
are  as  tight  as  a  drum  on  Sunday. 

In  Iowa  the  people  voted  in  favor  of  constitutional  prohibition  in  1883. 
Upon  a  technicality  the  supreme  court  held  the  election  void.  The  legis- 
lature, however,  passed  a  prohibitory  statute.  Because  of  difficulties  at- 
tending its  enforcement  in  the  "  river  cities  "  of  the  state,  a  .so-called 
"  mulct "  law  was  passed,  which  permits  a  locality,  upon  petition  of  65 


PROHIBITION  351 

per  cent  of  the  voters,  to  secure  an  exception  to  the  general  prohibition. 
Of  the  99  counties  only  22  grant  liquor  license,  and  of  1112  towns  and 
cities  975  forbid  the  sale  of  rum. 

In  Nebraska  10  counties  out  of  90,  and  450  out  of  1000  towns  and 
cities,  have  voted  out  the  saloon. 

South  Dakota  had  prohibition  when  admitted  to  the  Union,  but  by 
local-option  legislation  has  become  a  license  state.  Two  out  of  the  66 
counties  and  30  of  the  136  towns  and  cities  have  abolished  the  saloons. 

North  Dakota  retains  the  constitutional  prohibition  which  it  had  when 
received  into  the  Union.  Judge  Pollock  expresses  his  estimate  of  the 
value  of  prohibition  to  the  state.    He  says : 

Our  prosperity  under  prohibition  is  well-nigh  phenomenal ;  the  United  States 
census  reports  show  that  North  Dakota  has  the  greatest  wealth  per  capita  of 
any  state  in  the  Union,  and  that  our  farm  earnings  per  capita  are  the  greatest 
in  the  nation.  We  have  $100  per  capita  in  our  savings  banks.  The  population 
of  North  Dakota  has  increased  70  per  cent  in  the  last  ten  years. 

Montana  has  much  "  dry  "  territory  in  the  mountains  and  plains,  but 
mainly  because  there  are  no  inhabitants  to  make  it  "  wet."  Butte,  the 
mining  center,  has  been  described  as  a  large  body  of  ready  money  sur- 
rounded by  whisky.  There  is  a  county  local-option  law.  A  year  ago  a 
wine-room  law  was  passed  forbidding  a  woman's  presence  in  a  saloon  as 
a  barmaid,  a  patron,  or  companion  of  a  patron.  The  "  ladies'  entrance  " 
in  evidence  in  all  the  license  states  has  been  abolished  there. 

Wyoming  is  a  rum  stronghold.  It  is  the  fifth  whisky  state  in  the 
Union. 

Colorado  last  year  passed  the  Drake  local-option  bill,  which  gives  local 
option  to  a  municipality,  ward,  and  precinct.  Under  the  law  the  temperance 
forces,  including  the  women,  who  have  the  right  of  suffrage,  are  waging  a 
warfare  against  the  enemy  which  promises  to  clear  most  of  the  drinking 
places  out  of  the  state. 

The  Pacific  Slope 

In  Idaho  the  temperance  people  asked  of  their  legislature  and  ex- 
pected a  local-option  law,  but  instead  they  w-ere  given  high  license,  with 
some  option  to  the  county  commissioners  in  the  granting  of  license  to 
sell  outside  of  incorporated  cities.  The  state  gives  the  municipality  power 
to  prohibit  the  sale  of  liquor  by  the  passing  of  an  ordinance.  By  such 
an  ordinance  Meridian,  twelve  miles  from  Boise,  and  some  other  cities 
have  secured  prohibition. 

Nevada,  in  proportion  to  its  population,  is  at  the  head  of  the  column 
of  the  rum  states  in  America.  It  has  a  liquor  seller  for  every  49  inhab- 
itants, while  in  Mississippi  there  is  only  one  for  every  3240  persons. 
There  are  more  than  sLxty  times  as  many  liquor  dealers  in  Nevada  as 
in  Mississippi. 


352  AMERICAN  STATE  GOVERNMENT 

In  the  state  of  Washington  a  year  ago  the  local-option  bill  was  lost 
by  a  vote  of  43  to  44.  The  attempt  of  the  liquor  men  to  pass  a  Sunday- 
opening  law  was  defeated,  and  the  reaction  compelled  the  Sunday  clos- 
ing of  two  thirds  of  the  saloons  of  the  state,  which  had  been  wide  open 
in  defiance  of  law.  Walla  Walla,  Tacoma  with  its  100,000,  Seattle  with 
its  250,000  inhabitants,  and  most  of  the  other  cities  are  hermetically 
sealed  on  Sunday. 

In  Oregon,  of  the  33  counties,  8  are  "dn,-,"  and  70  precincts  in  other 
counties  have  abolished  the  saloon. 

California,  with  its  saloons  in  San  Francisco  and  other  cities  on  the  one 
side  and  active  temperance  people  on  the  other,  is  the  scene  of  a  battle 
in  which  liquor  bills  are  being  defeated  and  restrictive  measures  are 
being  adopted. 

The  Eastern  States 

Maine  is  the  mother  of  prohibition.  Neal  Dow  was  the  father  of  the 
Maine  law.  It  was  enacted  in  185 1,  repealed  in  1856,  reenacted  in  1858. 
In  1884  it  became  a  part  of  the  constitution  of  the  state.  Two  years  ago 
it  was  only  retained  by  a  narrow  majority,  when  Governor  Cobb  made 
the  canvass  and  was  elected  on  the  issue.  Despite  illicit  selling  and 
encouragement  to  nullification  upon  the  part  of  the  politicians  of  both 
parties,  the  people  of  the  state  acknowledge  the  benefit  of  the  system. 
Congressman  Littlcfield  in  a  recent  address  referred  to  the  singular 
material  as  well  as  mental  and  moral  thrift  of  the  state  under  prohibition. 

New  Hampshire  abandoned  prohibition  in  1902.  Six  of  the  11  cities 
and  183  out  of  the  224  towns  arc  "dry."  The  temperance  people  are 
for  resubmission. 

Vermont  abandoned  prohibition  in  1903.  Two  hundred  twenty-one 
of  the  246  towns  have  voted  "  dr)',"  and  three  fourths  of  the  people 
live  under  prohibition.  The  antisaloon  people  are  for  resubmission  and 
prohibition. 

Massachusetts  has  a  long  list  of  manufacturing  cities  which  have 
abolished  the  saloon,  including  Lynn,  with  its  78,000,  and  Worcester, 
with  its  130,000  inhabitants.  Ex-Governor  Douglas  was  active  in  the 
campaign  in  his  city  of  Brockton,  which  went  "  dry."  If  the  local-option 
bill  for  cities  now  urged  on  the  legislature  should  pass,  Boston  would 
expel  the  saloons  from  large  districts  in  the  city  limits. 

Rum  has  a  strong  grip  on  Rhode  Island.  Since  1889  the  state  has 
been  under  local  option.  There  are  only  16  towns  that  have  abolished 
the  saloon,  and  22  towns  and  cities  retain  it. 

Connecticut  has  recently  secured  the  enactment  of  laws  that  are  friendly 
to  the  temperance  people.  There  are  90  towns  "dry"  and  78  "wet" 
under  local  option. 

New  Jersey's  liquor  law  is  hostile  to  the  temperance  reformers.  Char- 
ters of  some  cities  allow  certain  protests,  but  there  is  virtually  no  local 


PROHIBITION 


353 


option.  There  is  a  tremendous  conflict  on  now  by  the  antisaloon  people 
for  local  option,  which  will  probably  be  successful  in  the  near  future. 

New  York  is  the  headquarters  for  brewers  and  distillers.  There  are 
30,000  retail  liquor  dealers  in  the  state.  They  pay  license  fees  of  $19,- 
000,000.  The  state  is  under  the  Raines  law,  which  allows  local  option 
in  townships.  A  large  number  of  new  towns  went  "  dry  "  at  the  last 
election.  The  excise  laws  are  much  more  stringently  enforced.  A  search- 
and-seizure  bill  and  a  bill  for  local  option  in  cities  have  been  intro- 
duced in  the  present  legislature,  with  a  prospect  of  their  passage.  The 
Reverend  Dr.  C.  H.  Parkhurst,  representing  the  Society  for  the  Preven- 
tion of  Crime,  has  just  demanded  of  Governor  Hughes  the  removal  of 
Mayor  McClellan  and  Police  Commissioner  Bingham  on  the  charge  of 
their  refusal  to  enforce  the  excise  law  closing  the  saloons  of  New  York 
City  on  Sunday.  The  Antisaloon  League  and  kindred  organizations  are 
backing  up  Dr.  Parkhurst  in  this  demand. 

Pennsylvania,  like  New  York,  is  behind  most  of  the  states  in  temper- 
ance reform.  The  Brooks  license  law  is  not  satisfactor)-  to  the  antisaloon 
people.  A  local-option  law  asked  for  by  them  has  been  killed  in  the  com- 
mittees of  the  legislature,  so  strong  has  the  whisky  power  been  upon  it. 

What  has  caused  this  Temperance  Revolution 

There  are  reasons  why  the  South  should  take  the  lead  in  this  prohibi- 
tion movement.  It  was  necessary  to  remove  the  saloon  from  the  negro 
to  save  Southern  industr)-  and  civilization.  Booker  T.  Washington  the 
other  day  said  :  "  The  abolition  of  the  barroom  is  a  blessing  to  the  negro 
second  only  to  the  abolition  of  slavery.  Two  thirds  of  the  mobs,  lynch- 
ings,  and  burnings  at  the  stake  are  the  result  of  bad  whisky  drunk  by 
bad  black  men  and  bad  white  men."  Besides,  the  South  is  intensely 
American.  In  the  fourteen  southern  states  there  are  but  16  foreign- 
born  persons  to  eveiy  1000  inhabitants.  In  Ohio,  California,  Pennsyl- 
vania, New  York,  Illinois,  and  Wisconsin  there  are  178  foreign-born 
persons  to  every  1000  inhabitants.  In  the  mountain  districts  of  the  South, 
where  the  foreign-bom  population  is  the  least  in  America,  there  are  al- 
most no  drinking  places.  The  "  moonshiners "  hide  in  some  of  the 
mountain  dens,  but  there  are  not  20  open  saloons  in  the  rural  sections 
of  the  mountains  of  Virginia,  West  Virginia,  Kentucky,  Tennessee, 
North  Carolina,  Georgia,  and  Arkansas.  It  is  not  so  hard  to  get  the 
liquor  traffic  away  from  so  homogeneous  a  population.  The  Southern 
people  are  sentimental  and  enthusiastic,  and  do  what  they  do  with  an 
intense  enthusiasm.  As  a  rule  they  have  a  deep  religious  instinct  and 
the  highest  moral  ideals.    The  territory  is  good  ground  for  prohibition. 

But  there  are  reasons  deeper  than  this  which  ha\-c  made  such  local 
success  in  the  South.  The  negro  question  has  had  nothing  to  do  with 
prohibition  in  Maine,  Kansas,  North  Dakota,  Oklahoma,  Ohio,  nor  Iowa. 


354  AMERICAN  STATE  GOVERNMENT 

The  work  of  abolishing  the  saloon  meets  with  the  least  resistance  in  the 
plantation  sections  of  the  South  and  the  rural  districts  of  the  North ; 
but  it  is  going  on  in  the  cities  as  well.  In  the  manufacturing  city  of 
Birmingham  (Alabama),  Atlanta  (Georgia),  Knoxville  (Tennessee),  in 
many  of  the  manufacturing  cities  of  New  England,  and  in  large  residen- 
tial districts  of  Chicago  and  other  cities  ^the  same  conflict  with  the  same 
spirit  is  being  waged. 

The  present  temperance  upheaval  is  the  revolt  of  the  American  con- 
science against  what  it  considers  to  be  wrong.  The  American  saloon 
can  blame  itself  largely  for  the  present  opposition  to  it ;  it  is  essentially 
bad.  Aside  from  the  inherent  danger  of  the  business  under  the  wisest 
possible  restraints,  the  liquor  dealers  of  the  nation  have  set  themselves 
to  do  their  very  worst  to  provoke  alarm.  The  saloons  are  the  breeding 
place  of  all  kinds  of  vice  and  crime.  In  them  the  thieves,  the  murderers, 
ballot-box  stuffers,  grafters,  purchasers  of  law,  and  the  debauched  find 
their  education  and  protection ;  and  from  them  the  lawless  hordes  go 
forth  to  prey  upon  society.  The  only  wonder  is  that  the  people  have 
stood  this  menace  to  our  civilization  as  long  as  they  have. 

While  it  is  not  universally  so,  it  is  too  often  the  case  that  the  saloon 
fosters  and  promotes  the  social  evil.  The  public  sentiment  is  greatly 
outraged  at  the  intimate  relationship  between  the  saloon  and  the  dis- 
orderly house.  The  public  is  very  angry  because  so  many  drinking  places 
are  gambling  hells. 

Another  thing  that  has  stirred  the  public  against  the  liquor  traffic  has 
been  the  relationship  between  the  politician  and  the  saloon.  No  feature 
of  American  public  life  is  so  abominable  and  discouraging  as  this  open 
and  notorious  copartnership  of  the  liquor  traffic  with  politicians  of  all 
parties  in  the  business  of  crime.  It  is  an  astounding  fact  that  most  of 
the  great  cities  of  the  country  arc  ruled  by  rum,  and  have  been  for  a 
generation  or  more.  Every  privilege  for  every  kind  of  crime  is  bought 
and  sold  for  money.  Fabulous  corruption  funds  and  thousands  of  the 
criminal  classes  are  organized  to  hold  up  the  public  and  compel  it  to  de- 
liver. 'I'hrcc  saloon  keepers  of  Chicago  have  absolute  authority  in  wards 
one  and  eighteen,  where  the  traffic  in  vice  is  maintained ;  and  men  of 
their  stripe  rule  in  some  other  wards ;  so  that  the  political  complexion 
of  Chicago  is  determined  by  the  saloon  influence.  In  New  York  City 
a  large  proportion  of  the  Tammany  leaders  who  determine  the  policy 
of  their  party  in  the  city  and  state  are  or  have  been  saloon  keepers.  In 
rhiladelphia  and  in  some  other  cities  the  connection  between  the  saloons 
and  the  jiolilical  leaders  of  the  opposite  party  is  just  as  marked  as  it  is 
in  Chicago  or  New  York. 

The  liquor  dealers  themselves  confess  to  the  badness  of  the  present 
American  saloon.  Each  class  is  charging  the  blame  on  (he  other.  At  a 
meeting  of  the  P.rewcrs'  .Association  ;it  tiie  Waidorf-Astona  in  New  York 
City  recently  the  blame  was  laid  at  iIk-  door  of  the  retail  liquor  dealers. 


PROHIBITION  355 

It  was  charged  that  the  saloons,  many  of  them,  were  filthy  dens,  and 
that  the  business  had  to  be  reformed  or  the  people  of  the  country  would 
destroy  them.  The  retail  liquor  dealers  in  their  conventions  have  been 
saying  that  the  brewers,  in  their  greed  for  money,  have  multiplied  the 
saloons  beyond  all  reason,  holding  them  down  by  their  mortgages  and 
making  it  impossible,  by  the  fierce  competition  which  has  been  forced 
upon  them,  to  make  a  living  and  pay  off  the  mortgages  without  intro- 
ducing the  disorderly  house  and  gambling  rooms  as  annexes,  putting  up 
money  for  graft,  and  otherwise  breaking  the  law.  The  brewers  say  the 
fault  is  with  the  distillers,  the  distillers  say  the  brewers  are  to  blame. 
They  both  admit  the  public  has  a  grievance. 

It  is  not  only  the  badness  of  the  American  saloon  that  has  caused  this 
revolution,  but  also  the  marked  awakening  of  the  public  conscience 
against  all  kinds  of  wrong,  and  hence  the  saloon  comes  in  for  its  share 
of  rebukes  and  opposition.  The  temperance  reformers  and  organizations 
of  the  past  and  present  have  been  exceedingly  active,  and  each  without 
an  exception  has  been  an  important  factor  in  the  great  moral  upheaval 
that  is  shaking  down  so  many  drinking  places.  The  Woman's  Christian 
Temperance  Union,  the  Good  Templars,  the  National  Temperance  Pub- 
lication Society,  the  third-party  Prohibitionists,  the  National  Reform 
Bureau,  and  kindred  societies  have  all  been  active  in  their  fields ;  but 
the  one  organization  which  has  done  more  than  all  others  in  giving  wise 
direction  and  successful  results  to  the  present  temperance  revolution  has 
been  the  Antisaloon  League.  It  was  founded  at  Oberlin,  Ohio,  in  1S93, 
by  the  Reverend  Howard  H.  Russell,  U.D.,  a  Congregational  clergy- 
man and  son  of  an  Episcopalian  rector,  who  is  now  chairman  of  the 
National  Executive  Committee  and  superintendent  of  the  New  York 
State  League. 

The  institution  is  compactly  organized  in  forty-four  states  and  terri- 
tories, with  a  national,  state,  and  district  superintendency.  It  is  inter- 
denominational and  omnipartisan.  The  Reverend  Parley  A.  Baker,  D.D., 
is  the  national  superintendent.  The  league  has  conducted  itself  so  wisely 
and  honorably  that  it  has  commanded  the  universal  respect  of  the  churches 
of  all  denominations,  many  of  the  Catholic  as  well  as  Protestant.  There 
are  few  cities  or  towns  in  the  LTnited  States  in  which  there  is  not  a  rep- 
resentative of  the  league  in  some  one  or  more  of  the  churches  on  Sunday, 
presenting  the  cause  and  securing  help  for  its  promotion.  For  thirteen 
years  this  quiet  work  has  been  going  on  on  Sundays,  besides  that  done 
on  week  days,  and  it  is  not  necessary  to  go  very  far  away  from  this  uni- 
fied sympathy  and  action  of  the  Christian  churches  of  America  to  find 
the  chief  cause  of  this  tremendous  moral  upheaval.  There  is  scarcely  a 
legislature  in  session  this  year  at  which  the  Antisaloon  League  does  not 
have  some  measure  or  measures  unfriendly  to  the  liquor  trafiic,  and  the 
restrictive  temperance  legislation  of  most  of  the  states  for  several  years 
has  been  handled  by  official  representatives  of  the  Antisaloon  League. 


356  AMERICAN  STATE  GOVERNMENT 

Many  rich  men  generously  support  this  organization;  but  there  are 
300,000  annual  contributors  to  its  campaign  fund,  which  speaks  loudly 
of  the  popular  sympathy  and  power  which  it  possesses.  Many  who  are 
not  members  of  any  church,  or  even  total  abstainers,  commend  and 
unite  in  the  work  of  the  league  in  the  interest  of  law  and  order  and  of 
civic  righteousness. 

This  popular  temperance  sentiment  has  expressed  itself  in  legislation 
at  W'ashington  in  the  removal  of  the  canteen  from  the  army,  of  drink 
from  soldiers'  homes  and  government  buildings,  and  other  measures,  and 
in  a  bill  now  before  Congress  preventing  the  shipment  of  liquors  into 
states  whose  laws  prohibit  their  sale. 

Will  prohibition  prohibit  ?  Relatively,  yes.  Absolutely,  no.  Prohibition 
never  does  absolutely  prohibit  any  form  of  crime,  —  that  of  murder, 
theft,  arson,  forgery,  or  perjury.  The  courts  and  jails  all  attest  the  truth 
of  this.  The  contention  of  liquor  dealers  that  more  rum  is  sold  in  a  state 
under  prohibition  than  under  license  is  hardly  to  be  taken  seriously,  for 
if  it  were  true,  they  would  be  working  for  prohibition  instead  of  shivering 
with  fear  and  filling  the  papers  and  conventions  with  alarm  at  the  tidal 
wave  of  prohibition  and  loudly  calling  for  organized  help  to  resist  and 
prevent  its  destroying  them. 

You  cannot  make  men  good  by  law,  —  so  many  people  and  papers 
are  saying  now.  "  Yes,  you  can ! "  No  people  on  earth  can  be  good 
without  law  and  order ;  so  good  a  type  of  a  race  as  the  Anglo-Saxon  has 
to  bind  himself  about  with  most  stringent  law  to  keep  from  becoming  a 
very  bad  citizen.  Fully  one  half  of  all  that  is  good  or  great  in  man  has 
had  to  be  beaten  into  him  by  authority.  Gladstone  said  that  the  primary 
object  of  law  is  to  make  it  easier  for  men  to  do  right  and  harder  for  them 
to  do  wrong. 

Moral  and  political  progress  is  always  along  the  stages  of  advances 
and  retreats.  How  long  will  this  temperance  movement  continue  with- 
out a  reaction  ?  No  one  can  tell.  Very  likely  till  every  state  in  the  Union 
shall  have  tried  the  experiment  of  prohibition  by  local  option  or  state 
action.  While  there  are  114,000  more  saloons  than  churches,  while  the 
liquor  traffic  continues  to  take  into  its  treasury  enough  money  each  year 
to  run  every  department  of  the  federal  government,  —  executive,  legisla- 
tive, judicial,  navy,  army,  post  office,  treasury,  and  every  other  interest, 
—  the  whisky  men  will  not  surrender  without  a  fierce  and  long  struggle. 
But  the  present  revolution  will  result  in  greatly  reduced  individual  con- 
sumption of  rum,  in  the  manifest  diminution  of  the  sale  of  liquor,  and  in 
the  destruction  of  the  American  saloon  in  its  present  form. 


PROHIBITION  357 

ANOTHER  YEAR  OF  DEFEAT  FOR  THE  AMERICAN 

SALOON 1 

By  Ferdinand  Cowle  Iglehart 

The  revolt  against  the  liquor  traffic  seems  to  be  world-wide.  The  fight 
against  it  in  Europe  is  nearly  as  fierce  as  it  is  in  this  country.  Finland 
abolished  intoxicants  by  a  vote  of  its  Parliament.  Iceland  adopted  national 
prohibition  in  September  last.  The  Duma  of  Russia  ordered  the  removal 
of  the  royal  eagle  from  the  vodka  bottles,  and  the  substitution  of  the 
skull  and  crossbones,  the  symbols  of  death,  and  the  word  "  poison " 
written  in  large  letters  beneath  them  as  a  warning  to  the  people.  In  Paris 
there  are  placards  placed  on  the  bulletin  boards  saying  that  "  whoever 
puts  alcohol  in  his  mouth  takes  out  his  brains,  his  money,  his  health,  his 
happiness."  Government  statistics  in  England  show  a  decrease  of  thirty 
million  dollars'  worth  of  intoxicants  in  the  consumption  during  the  year 
1908. 

The  South  swept  by  a  "  Prohibition  "  Wave 

The  temperance  revolution  in  this  country  continues  with  unabated 
energy.  Eleven  thousand  saloons  were  put  out  of  business  during  the 
year  1907,  as  many  more  in  1908,  and  at  that  rate  of  decrease  it  would 
require  but  twenty  years  to  abolish  all  the  saloons  of  the  country. 

About  eighteen  of  the  twenty  millions  of  the  people  of  the  southern 
states  have  already  outlawed  the  saloon.  In  New  York  City  alone  there 
are  one  thousand  more  saloons  than  in  all  the  fourteen  southern  states, 
and  it  looks  as  though  within  the  coming  five  years  every  state  in  that 
section  would  vote  the  saloon  out  of  existence. 

On  May  6,  1908,  North  Carolina  followed  her  sister  states  of  Georgia, 
Alabama,  and  Mississippi  in  the  adoption  of  state  prohibition  by  a  pop- 
ular vote. 

The  campaign  was  a  notable  one,  participated  in  by  Governor  Glenn, 
the  two  United  States  senators,  every  member  of  Congress,  all  of  whom 
stood  against  the  saloon,  securing  a  majority  of  42,000  votes. 

The  fight  for  prohibition  in  1909  was  begun  by  Tennessee,  following 
the  example  of  her  old  mother  state.  North  Carolina,  passing  a  bill  pro- 
hibiting the  sale  of  intoxicants  by  a  vote  of  24  to  13  in  the  Senate,  and 
62  to  36  in  the  House.  It  was  vetoed  by  the  governor,  and  passed  over 
his  objection  by  the  same  vote  in  the  Senate,  and  by  the  loss  of  but  one 
vote  in  the  House.  This  bill  will  go  into  effect  the  first  day  of  next  July, 
at  which  time  every  saloon  in  the  state  will  close  its  doors.  A  more  dras- 
tic bill  to  prohibit  the  manufacture  of  intoxicants  in  the  state,  which  is  to 
take  effect  on  January  i,  19 10,  was  carried  in  both  branches  of  the  legis- 
lature, and  was  passed  again  over  the  governor's  veto,  and  is  now  a  law. 

1  From  the  Review  of  Reviews,  May,  1909.    Reprinted  by  permission. 


358  AMERICx\N  STATE  GOVERNMENT 

In  South  Carolina  each  county  having  a  dispensary  will  vote  on  the 
question  of  option  between  the  county  dispensary  and  prohibition  in 
August  of  this  year. 

Thirty-six  of  the  46  counties  of  Florida,  including  525,000  of  the 
650,000  of  population,  have  abolished  the  saloon.  There  are  only  330 
saloons  in  the  entire  state,  and  from  the  organization  of  the  present 
legislature  it  seems  probable  that  state-wide  prohibition  will  be  adopted 
at  once. 

Louisiana  has  more  than  32,000  square  miles  of  "  dry  "  territory,  and 
6  entire  parishes  were  placed  in  the  antisaloon  license  column  during 
the  past  year. 

Fifty-nine  out  of  the  79  counties  of  Arkansas  are  "dry,"  and  1,612,000 
of  the  1,750,700  of  the  people  in  the  state  are  living  in  territory  where 
the  drink  traffic  is  forbidden.  There  are  only  317  saloons  in  the  whole 
state  left,  which  must  give  way  to  the  inevitable  public  verdict  against 
the  business. 

During  the  past  year  800  saloons  were  driven  out  of  Texas,  and  15 
new  counties  voted  "no  license."  Of  the  243  counties  150  are  "dry," 
66  part  "wet,"  and  25  license  the  saloon.  Two  hundred  thousand  of 
the  267,000  square  miles  of  the  state  is  "dry"  territory,  containing  a 
population  of  3,000,000  people.  State-wide  prohibition  will  be  a  certainty 
in  the  near  future. 

In  Virginia  during  the  past  year  400  liquor  places  were  put  out  of 
business.  Seventy-one  of  the  100  counties  in  the  state  have  not  a  licensed 
saloon. 

The  temperance  people  of  West  Virginia  lost  in  their  battle  before 
the  Senate,  which  recently  adjourned,  losing  two  propositions :  first  the 
amendment  to  the  constitution,  forbidding  the  manufacture  and  sale  of 
intoxicating  drinks,  and  also  one  for  county  local  option.  There  are 
700,000  of  the  1,200,000  people  of  this  state  who  live  in  territory  where 
the  saloon  is  forbidden.  Thirty-three  counties  out  of  the  55  in  the  state 
are  entirely  "  dry." 

In  Kentucky  one  more  county  has  been  added  to  the  "  dry  "  column, 
making  96  out  of  the  119  counties  in  the  state. 

Missouri  has  made  decided  progress  during  the  past  year.  'I'here  are 
now  50  "  dry  "  ccnmties  in  the  state,  including  their  municipalities,  while 
2  7  other  counties  have  abolished  the  saloon  under  the  county-option  law, 
which  exempts  cities  of  2500  population  and  more  from  its  operation. 

A(;gressive  Campakininc  in    riiK  Middle  West 

The  fires  of  prohibition  that  have  been  ])urning  in  the  cotton  fields  of  the 
South  have  crossed  Mason  and  Dixon's  Dine  and  caught  in  the  meadows, 
the  corn  fields  and  wheat  fields  of  Illinois,  Indiana,  Ohio,  and  other  north- 
ern states,  and  are  burning  as  fiercely  as  they  have  been  in  the  South. 


PROHIBITION 


359 


Illinois,  the  third  state  in  the  Union  in  wealth,  population,  and  impor- 
tance, never  gave  its  people  the  benefit  of  a  local-option  law  until  last 
year,  when  the  people  voted  in  1300  towns,  1000  of  which  went  "  dry." 

The  temperance  movement  in  Indiana  is  about  as  vigorous  as  in  any 
of  the  southern  states.  The  Remonstrance  law  had  cleared  the  saloon 
from  two  thirds  of  the  geographical  area  of  the  state.  Of  the  36,300 
square  miles  of  territory,  26,170  had  been  made  "dry,"  and  about 
1,600,000  of  the  population  out  of  the  2,600,000  were  living  in  "dry" 
territory.  Governor  Hanly  called  a  special  session  of  the  legislature  in 
September  last,  which  passed  a  local-option  law  with  the  county  as  the 
unit,  under  which  the  people  are  making  Indiana  a  prohibitory  state  as 
rapidly  as  they  can  get  to  the  polls.  Under  the  old  law  20  entire  counties 
had  gone  "  dry."  Since  last  autumn  43  more  had  joined  their  company, 
making  63  of  the  92  counties  in  the  state  which  are  entirely  "  dry,"  and 
it  is  understood  that  but  i  county  of  all  the  44  recently  voting  has  gone 


"  wet." 


It  is  said  that  the  local-option  question  got  mixed  up  pretty  badly  in 
Hoosier  politics,  some  of  the  leaders  claiming  that  Watson  and  the 
Republican  state  ticket  were  beaten  on  that  account.  It  is  likely  that  the 
Republican  party  would  have  been  beaten  very  much  worse  if  it  had 
undertaken  to  dodge  the  issue,  which  was  inevitable.  It  is  charged  that 
the  liquor  people  beat  Kearns  for  the  senatorship,  and  that  he,  in  revenge, 
prevented  the  repeal  of  the  local-option  bill.  But  whatever  hand  the 
temperance  question  played  in  the  politics  of  the  state,  the  people,  Demo- 
crats and  Republicans,  went  on  steadily  voting  the  saloon  out  of  business 
in  the  state,  and  it  now  seems  likely  that  Indiana  may  be  the  next  state 
of  the  North  to  adopt  state  prohibition. 

The  revolution  in  Ohio  is  just  as  marked  as  in  Indiana,  and  just  as 
enthusiastic  as  in  any  of  the  southern  states.  The  Antisaloon  League, 
which  was  born  in  that  state,  removed  the  saloon  from  large  districts  in 
the  state  by  one  form  of  local  option  or  another,  but  a  local-option  bill 
for  the  county  as  the  unit  was  passed  by  the  legislature,  under  whose 
provisions  voting  has  been  going  on  since  last  autumn,  with  results  that 
have  startled  the  nation.  The  saloon  had  been  removed  from  5  entire 
counties  under  the  previous  laws,  but  since  last  September  63  counties 
have  voted  on  the  subject,  58  of  which  have  abolished  the  saloon,  and 
only  9  counties  have  licensed  it ;  so  that,  of  the  88  entire  counties  of  the 
state,  63  have  gone  "  dry  "  and  9  have  gone  "  wet."  Many  of  the  contests 
were  notable,  especially  the  one  in  Clark  County,  which  contains  Spring- 
field, with  a  population  of  42,000,  polling  a  vote  of  almost  19,000  votes, 
which  went  "dry"  by  139  majority.  The  legislature  this  year  passed 
two  laws  strengthening  the  local-option  law  ;  one  preventing  agents  from 
soliciting  orders  for  liquor  in  "  dry  "  territory,  the  other  providing  for  the 
appointment  of  secret-service  men  in  each  county  in  the  state  to  assist 
the  prosecuting  attorney  in  securing  evidence  of  the  illegal  sale  of  liquor. 


360  AMERICAN  STATE  GOVERNMENT 

These  measures  were  desperately  fought  by  the  liquor  men,  who  were 
finally  overcome. 

One  year  ago  there  was  but  one  county  entirely  "  dry  "  in  the  state 
of  Michigan.  Early  last  month,  after  one  of  the  fiercest  fights  in  the 
history  of  the  state,  local-option  elections  were  held  in  27  counties,  20  of 
which  went  "dry,"  closing  at  one  stroke  600  saloons  and  10  breweries. 

Afte^  a  tremendous  struggle  the  Nebraska  legislature  at  its  last  session 
passed  the  Daylight  Sale  bill,  permitting  the  sale  of  liquor  only  between 
the  hours  of  7  a.m.  and  8  p.m. 

The  legislature  of  Iowa  on  the  eve  of  adjournment  passed  two  bills 
unfriendly  to  the  liquor  interests,  one  limiting  the  number  of  saloons  to 
I  to  1000  of  the  population  in  cities,  the  other  requiring  druggists  to  file 
with  the  auditor  of  the  county  signed  applications  for  liquor. 

The  state  of  Washington  has  just  passed  a  county-option  law,  ex- 
cluding municipalities  of  2500  or  more,  which  have  a  separate  option  of 
their  own. 

The  legislature  of  Idaho  has  this  year  passed  a  very  strong  local- 
option  law. 

Both  branches  of  the  legislature  of  Utah  passed  a  county-option  bill, 
but  just  at  the  last  of  the  session,  when  too  late  for  a  remedy,  the 
governor  vetoed  the  bill. 

Prohibition  was  the  main  issue  in  the  municipal  elections  held  in  Colo- 
rado, outside  of  Denver,  early  in  April.  The  antisaloon  party  generally 
was  successful. 

Local  Option  in  New  York  and  New  England 

A  local-option  bill  for  cities  as  a  whole  is  pending  before  the  New 
York  state  legislature.  The  present  liquor  law  of  the  state  permits  local 
option  for  towns,  under  which  elections  have  been  held  this  year,  result- 
ing in  a  net  increase  of  30  "dry"  towns.  About  330  towns  in  the  state 
are  "dry,"  about  320  "  wet,"  and  the  rest  arc  part  "  wet  "  and  part  "  dry." 
The  Committee  of  Fourteen  introduced  a  bill  at  Albany,  providing  among 
other  things  for  the  opening  of  saloons  in  cities  of  the  first  class  certain 
hours  on  Sunday,  which  was  promptly  killed  in  the  Senate  Committee. 
Yates  County,  by  a  vote  on  February  23,  carried  all  the  towns  in  its 
territory  against  the  saloon,  and  became  the  first  and  only  entirely  "  dry  " 
county  in  the  .state. 

Recent  elections  in  Connecticut  have  abolished  the  liquor  traffic  from 
3000  square  miles  of  territory,  closing  300  saloons  during  the  year. 

Massachusetts  has  gained  10  municipalities  for  the  "  dry  "  column. 

During  1908,  429  .saloons  were  driven  out  (if  Rhode  Island. 


PROHIBITION  361 

Important  Federal  Legislation 

For  several  years  the  temperance  people  have  undertaken  to  secure 
an  amendment  to  the  Interstate  Commerce  law,  forbidding  the  importa- 
tion of  intoxicating  liquors  into  territory  made  "  dry  "  by  state  legislation, 
and  have  failed.  On  February  17  last  there  was  incorporated  into  the 
penal  code  of  the  United  States  the  Interstate  Liquor  Shipment  bill, 
introduced  by  Representatives  Humphreys,  of  Mississippi,  and  Miller,  of 
Kansas.  It  is  considered  by  many  the  most  important  temperance  legis- 
lation since  the  passage  of  the  Wilson  law  in  1890.  This  bill  does  three 
things:  (i)  it  prohibits  C.O.D.  shipments;  (2)  it  prohibits  delivery  to 
fictitious  consignees  ;  (3)  it  requires  that  all  packages  of  liquor  for  inter- 
state shipment  shall  be  plainly  marked,  designating  the  contents  and 
consignee.  The  bill  was  in  grave  danger  and  would  have  been  killed  in 
the  committee,  had  it  not  been  that  Speaker  Cannon  obstinately  demanded 
its  passage  and  then  voted  for  it  upon  the  floor.  This  law,  while  it  will  not 
do  all  that  the  friends  of  temperance  might  desire,  will  go  a  long  way 
toward  correcting  the  abuse  that  the  liquor  dealers  have  practiced  upon  the 
citizens  of  the  states  that  have  prohibited  the  drink  traffic,  and  will  pave 
the  way  for  further  relief  which  the  people  of  the  states  may  demand  in 
the  future. 

The  Saloon  "  Fighting  for  its  Life  " 

Almost  all  of  the  legislatures  meeting  during  the  present  year  have 
had  bills  relating  in  some  way  to  the  liquor  traffic.  Very  few  of  these 
bills  showing  any  friendliness  to  the  saloon  have  been  allowed  to  become 
laws.  A  recent  editorial  in  Bonforfs  Wine  and  Spirit  Circular,  written 
by  T.  M.  Gilmore,  the  president  of  the  National  Model  License  League, 
expresses  the  opinion  of  many  liquor  dealers  upon  the  present  temperance 
revolution.  It  says : 

The  Antisaloon  League  is  backed  by  able  men  and  plenty  of  money.  In  the 
last  eighteen  months  the  business  we  represent  has  been  outlawed  in  the  states 
of  Oklahoma,  Georgia,  Alabama,  Mississippi,  North  Carolina,  and  Tennessee, 
and  it  is  now  facing  destruction  in  West  Virginia,  Texas,  Kentucky,  Arkansas, 
Utah,  and  Idaho.  The  saloon  is  fighting  for  its  life  in  practically  every  state 
in  the  Union. 

The  liquor  dealers  strenuously  insist  that  "  prohibition  does  not  pro- 
hibit," and  their  literature,  which  is  scattered  broadcast  among  the  church 
people  as  well  as  others,  claims  the  failure  of  the  prohibitory  laws  in  the 
states  having  them.  They  insist  that  the  more  the  traffic  is  prohibited, 
the  more  liquor  is  consumed,  and  that  hypocrisy  and  disrespect  for  law 
are  fostered  ;  and  yet  the  states  that  have  adopted  prohibition  seem  to  be 
very  well  pleased  with  their  legislation,  and  none  of  them  have  surrendered 
to  license,  and  other  states  in  pretty  rapid  succession  are  joining  their  ranks. 


362  AMERICAN   STATE  GOVERNMENT 

In  Maine,  Kansas,  and  North  Dakota,  at  their  last  election,  governors 
were  chosen  on  platforms  not  only  declaring  for  state-wide  prohibition, 
but  for  a  rigid  enforcement  of  the  prohibitor}^  law ;  while  in  Georgia, 
Oklahoma,  and  Alabama  the  antisaloon  forces  have  held  their  own, 
preventing  legislation  which  would  in  any  way  weaken  the  state  pro- 
hibitory laws. 

Strength  of  the  Economic  Argument 

No  great  result  can  come  from  a  small  cause.  There  are  powerful 
causes  that  are  putting  the  saloon  out  of  business.  More  and  more  the 
economic  argument  is  influencing  voters  to  abolish  the  saloon.  The  man 
who  frequents  the  saloon  is  not  so  strong  in  body,  nor  intellectually  so 
keen,  nor  professionally  or  industrially  so  efficient  as  the  man  who  does 
not.  A  man  who  has  no  scruples  on  the  subject,  but  has  good  common 
sense,  soon  discovers  that  he  is  handicapped  in  the  heated  competition 
of  life  when  he  becomes  a  patron  of  the  saloon. 

The  New  York  Central,  the  Lackawanna,  the  Pennsylvania,  the  Balti- 
more and  Ohio,  the  Wabash,  the  Rock  Island,  the  Great  Northern,  and 
other  railroad  systems  have  adopted  the  following  rule :  "  The  use  of 
into.xicants  by  employees,  while  on  duty,  is  prohibited.  Their  habitual 
use,  or  the  frequenting  of  places  where  they  are  sold,  is  sufficient  cause 
for  dismissal."  The  Michigan  state  law  will  not  permit  a  man  who  is 
not  a  total  abstainer  to  have  anything  to  do  with  the  running  of  trains. 
The  premium  on  temperance  in  railroad  circles  is  so  great  that  25,000 
employees  of  the  Northwestern  Railroad  signed  a  pledge  of  total  absti- 
nence at  one  time. 

Business  houses  generally  discriminate  against  the  drinker  in  the  em- 
ployment of  men.  The  United  States  Commissioner  of  Labor  sent  a 
note  of  inquiry  to  7000  concerns  employing  labor;  5363  of  them 
responded  that  they  took  the  drink  question  very  much  into  account  in 
hiring  men,  and  that  they  had  to  be  the  more  careful  in  selecting  respon- 
sible help  because  the  law  held  them  liable  for  injuries  caused  by  accident. 
The  young  man  of  ambition  and  hope  who  wants  to  get  into  a  good  place 
and  succeed  in  it  knows  full  well  that  he  must  stay  away  from  the  saloon. 
This  business  argument  sends  hundreds  of  thousands  of  employees  into 
the  ranks  of  those  who  are  fighting  the  traffic. 

The  people  paid  last  year  a  billion  dollars  for  intoxicating  drink, 
$108,000,000  more  than  for  all  the  necessaries  of  life,  and  it  is  a  protest 
against  this  colossal  material  waste,  and  a  desire  to  divert  some  of  the 
drink  money  to  better  uses,  that  has  prompted  many  to  vote  "  no  license  " 
in  the  campaigns.  The  billion  dollars  paid  over  the  counter  for  drink  for 
the  year  is  only  about  a  half  of  the  material  damage  the  traffic  causes, 
requiring  institutions  to  be  maintained  by  the  public. 

The  large  amounts  of  money  paid  into  the  treasuries  of  states  and 
municipalities  by  the  liquor  dealers  are  no  compensation  for  the  material 


PROHIBITION  363 

as  well  as  the  moral  waste  in  the  community,  and  while  there  are  many 
friends  of  law  and  order  who  vote  for  license  because  they  think  the 
saloon  ought  to  be  made  to  pay  a  part  of  the  price  of  its  public  injury, 
the  people  are  getting  to  believe  more  and  more  each  year  that  the  dam- 
age of  the  saloon  is  too  great,  and  they  are  unwilling  to  tolerate  it  and 
are  voting  "  no  "  on  the  proposition  to  permit  it. 

The  sentimental  and  moral  argument  for  the  removal  of  the  saloon  is 
more  powerful  with  the  average  voter  in  the  "  wet  and  dry  "  campaigns 
than  the  economic  one,  strong  as  it  is. 

The  liquor  men  have  untold  wealth  at  their  disposal ;  the  ablest  minds 
in  the  nation  are  employed  as  their  attorneys ;  they  have  lobbyists  at 
the  sessions  of  every  state  legislature  and  national  Congress ;  they  have 
politicians  of  both  parties  in  every  state  and  city  who  can  be  relied  upon 
to  promote  their  interests  ;  they  have  an  army  of  200,000  saloon  keepers, 
and  more  than  that  of  loyal  patrons ;  millions  of  dollars  are  spent  in  ad- 
vertisements and  in  their  literary  department  each  year,  and  their  fight 
will  be  desperate  and  prolonged.  But  the  self-interest  and  conscience  of 
the  nation  are  against  them,  and  unless  there  shall  be  some  reformation 
in  the  liquor  traffic,  which  seems  now  impossible,  or  if  there  should  occur 
no  disagreement  or  disintegration  among  the  temperance  forces  now  so 
united,  it  is  likely  that  within  a  generation  the  saloon,  as  we  see  it  to-day, 
will  have  passed  away. 


VIII 
ELECTIONS   AND   NOMINATIONS 

THE  MULTIFARIOUS  AUSTRALIAN   BALLOT  ^ 
By  Philip  Loring  Allen 

A  standard  political  reference  book  is  authority  for  the  statement 
that  forty-two  of  the  forty-six  states  of  the  American  Union  use  the 
Australian  ballot  in  their  elections.  If  this  is  true,  then  the  election 
machinery  of  Australia  would  seem  to  be  quite  as  varied  and  remark- 
able as  the  flora  and  fauna  of  that  continent.  As  a  matter  of  fact,  the 
expression  "  Australian  ballot "  is  used  here  in  two  senses.  In  a  re- 
stricted sense  it  is  applied  to  the  particular  form  which  America  bor- 
rowed from  Australia,  and  which  the  state  of  Massachusetts  led  the  way 
in  adopting  in  1889.  But  it  is  also  used  to  designate  any  secret  ballot 
printed  and  furnished  by  the  state.  In  this  broader  significance  it 
is  applied  to  forms  which  have  scarcely  another  single  characteristic 
in  common. 

The  plan  of  voting  which  was  abolished  in  all  but  a  few  of  the  states 
during  the  ballot-reform  movement  of  the  early  nineties  was  substan- 
tially that  which  most  clubs  and  associations  use  for  electing  officers,  and 
corporations  in  choosing  directors.  A  ballot  was  simply  a  piece  of  paper 
bearing  the  names  of  the  persons  voted  for  and  the  various  offices  to  be 
filled.  Anybody  could  print  such  ballots  and  persuade  as  many  voters 
as  he  could  to  cast  his  particular  kind,  though  as  a  matter  of  course  the 
party  organizations  prepared  the  vast  majority  of  those  voted.  Three 
southern  states  have  never  abandoned  the  old  system  and  still  allow  the 
casting  of  unofficial  ballots,  which  may  be  "  written  or  printed  or  partly 
written  and  partly  printed."  The  average  Georgian  or  South  Carolinian 
deposited  in  November  of  1906  a  ballot  prepared  for  him  by  the  local 
representative  of  the  Democratic  i:>arty,  exactly  as  he  may  have  cast 
in  one  of  the  New  York  insurance  company  elections  a  ballot  pre- 
pared for  him  by  the  International  Policyholders'  Committee  or  his  own 
insurance  agent. 

'I'he  fact  that  most  American  voters  were  accustomed  to  voting  a 
whole  party  ticket  at  a  single  operation  explains  iiow  the  true  Austra- 
lian  l),ill(il  came  to  be  modified  in  this  country.    The  ballot  reformers 

1  From  North  American  Rci'iciv,  May,  1910.    Kcpiinlcd  by  permission. 

364 


ELECTIONS  AND  NOMINATIONS  365 

proposed  a  method  by  which  a  thick-and-thin  Republican,  for  example, 
should,  on  election  day,  vote  first  for  a  Republican  governor,  then  for  a 
Republican  lieutenant  governor,  then  for  a  Republican  Secretary  of  State, 
and  so  on,  until  he  finished  his  ballot  by  voting  for  a  Republican  pound- 
master.  It  was  very  plausible  for  the  politicians  in  communities  accus- 
tomed to  the  "  vest-pocket  ballot"  to  say :  "  No  ;  we  like  your  plans  for 
a  secret  vote.  We  like  your  plans  for  purifying  the  polls  and  for  insur- 
ing a  fair  count.  But  we  do  not  like  your  idea  of  scattering  the  nominees 
of  a  party  all  over  a  blanket  sheet.  We  will  adopt  your  safeguards  and 
we  will  make  the  ballot  official,  but  we  will  follow  the  form  of  our  old 
familiar  party  slips,  simply  arranging  them  side  by  side  on  a  blanket 
sheet  like  yours." 

In  John  Fiske's  "Civil  Government,"  published  in  1892,  facsimiles 
were  printed  of  the  new  Massachusetts  ballot  and  the  adaptation  of  it  as 
used  in  Kansas.  The  former  placed  the  candidates  for  each  office  within 
a  "  box  "  or  wide  printed  border  by  themselves,  arranged  in  alphabetical 
order,  each  followed  by  the  name  of  the  party  nominating  and  a  space 
in  which  the  voter  was  to  make  his  "  X  "  mark.  The  Kansas  ballot,  on 
the  other  hand,  assembled  the  names  of  each  party's  nominees,  from  the 
highest  down,  in  a  column  headed  by  the  party  name  in  large  letters. 
In  all  other  respects  the  ballots  were  on  an  exact  parity.  No  method 
was  provided  for  voting  all  the  names  in  one  of  these  party  columns  en 
bloc.  Just  as  in  Massachusetts,  the  elector  had  to  make  his  mark  for 
every  candidate  of  his  choice,  whether  these  were  all  in  the  same  column 
or  selected  from  several  columns.  The  difference  was  then  in  typography 
rather  than  in  principle. 

The  real  divergence  came  when  the  party-column  ballot  was  again 
modified  by  the  addition  of  a  circle  or  square  at  the  head  of  each  column, 
by  means  of  which  a  "  straight  ticket"  could  be  voted  at  a  single  opera- 
tion. The  emblems  which  in  many  states  have  also  been  placed  at  the 
head  of  the  party  columns,  though  often  criticized,  serve  a  perfectly 
legitimate  purpose  as  a  guide  to  the  illiterate. 

Thus  originated  the  two  chief  forms  of  ballots  used  in  this  country. 
They  are  illustrated  in  Figures  i  and  2,  which  are  not  facsimiles  of  the 
styles  used  in  any  states,  but  embody  the  characteristic  features.  The 
first  makes  no  concession  to  the  party  beyond  designating  the  organi- 
zation which  placed  each  candidate  in  nomination.  The  smallest  of  minor 
parties,  by  nominating  a  candidate  named  Abarbanell,  gets  his  name  in 
the  most  conspicuous  place.  The  district  leader  and  the  Good  Govern- 
ment Club  member  who  wants,  possibly,  a  Republican  President,  a 
Democratic  governor,  an  Independent  district  attorney  and  a  Prohibi- 
tion sheriff  are  put  to  precisely  the  same  amount  of  time  and  trouble  in 
voting.  The  second  form  (Figure  2)  is  frankly  partisan.  "  Most  men  are 
adherents  of  some  party,"  say  the  advocates  of  this  ballot,  "  and  their 
right  to  vote  as  they  wish  with  the  least  possible  trouble  is  paramount." 


366 


AMERICAN  STATE  GOVERNMENT 


This  style  of  ballot  always  puts  the  man  who  goes  outside  a  single-party 
column  at  a  disadvantage,  —  how  much  of  a  disadvantage  depends  upon 
the  rule  for  marking.  To  illustrate,  in  New  York  City  four  years  ago 
Mr.  Jerome,  an  Independent  candidate  for  district  attorney,  whose  name 
stood  by  itself  in  the  last  column  of  the  ballot,  was  seeking  votes  among 
the  adherents  of  all  three  of  the  important  city  tickets.    His  supporters 


FIGURE  1 


Governor 

Mark  One 

Charles  T.  Apgar 

Prohibition 

Samuel  E.  Briggs 

Socialist 

Arthur  Fuller 

Democratic 

Henry  Zabriskie 

Republican 

Lieutenant  Governor 

Mark  One 

Howard  Arnold 

Kpnnhliran 

Clarence  P.  Snyder 

Sofia  list 

Geore'e  Van  Derzee 

ProViihitinn 

John  W.  Young 

npmnrratir 

The  Massachusetts-Australian  ballot.    All  candidates  on  an  absolute  equality. 

FIGURE  2 


RM'UHLICAN 

O 

Democratic 
O 

Governor 
Henry  Zabriskie 

Governor 
Arthur  Fuller 

Lieutenant  Governor 
Howard  Arnold 

Lieutenant  Governor 
John  W.  Young 

Secretary  of  State 
lOdward  Marshall 

Secretary  of  State 
Steven  Hyrne 

State  Treasurer 

S.  Frederick  Crocker 

State  Treasurer 
Timothy  (iregg 

Essential  features  of  party-column  ballot  as  used  in  nearly  half  of  the  states, 
including  New  York. 


ELECTIONS  AND  NOMINATIONS 


367 


claimed  that  a  mark  in  any  one  of  the  straight-ticket  circles  and  an 
additional  mark  opposite  Mr.  Jerome's  name  was  a  legal  vote  for  him 
and  also  for  all  the  candidates  in  the  chosen-party  column  except  the 
nominee  for  district  attorney.  Tammany  contended,  however,  up  to  the 
eve  of  election,  that  the  only  legal  way  of  splitting  a  ticket  was  to  mark 
every  favored  candidate  separately.  If  the  Jerome  nominators  were 
correct,  and  the  party  circle  was  for  the  use  of  split-ticket  as  well  as 
straight-ticket  voters,  then  two  marks  would  be  enough  to  vote  for 
Jerome  and  one  of  the  party  tickets.  If  Tammany  was  right,  —  and  the 
rule  for  which  it  contended  prevails  in  several  states,  —  then  the  same 
vote  would  require  the  marking  of  sixteen  names.    By  no  construction 

FIGURE  3 

To  vote  a  straight  party  ticket,  write  within  the  blank  space  immediately  here- 
under the  name  of  the  party  you  wish  to  vote  for. 


I  hereby  vote  a  straight ticket  except  where 

I  have  marked  opposite  the  name  of  some  other  candidate. 


If  you  have  voted  a  straight  ticket  above  and  place  a  cross  mark  ( x  )  opposite 
any  name  below,  such  cross  mark  (  x  )  will  be  counted  for  that  candidate,  and  the 
vote  cast  for  the  candidate  on  the  straight  ticket  for  the  same  office  will  not  be 
counted,  etc. 


For  Governor                                     ^"(^^^f^-- 

Charles  T.  Apgar 

Prohibition 

Samuel  E.  Briggs 

SociaHst 

Arthur  Fuller 

Democrat 

Henry  Zabriskie 

Republican 

For  Lieutenant  Governor                             q 

Howard  Arnold 

Republican 

Clarence  P.  Snyder 

Socialist 

George  Van  Derzee 

Prohibition 

John  W.  Young 

Democrat 

The  Colorado  plan.  In  the  election  contest  of  1904  experts  testified  that  they 
could  identify  individual  "  secret "  ballots  by  the  handwriting  in  which  the  party 
name  was  inserted. 


368  AMERICAN  STATE  GOVERNMENT 

of  the  law,  however,  could  a  Jerome  voter  be  put  on  an  exact  equality 
with  the  strict  partisan. 

These  are  the  differences  between  the  "  reform "  ballot  and  the 
avowedly  partisan  sort.  There  exists,  however,  a  third  class  of  ballots 
which  are  neither  one  thing  nor  the  other,  and  these  are  in  some  respects 
the  most  interesting  of  all.  Wherever  there  has  been  popular  confusion 
between  the  essentials  and  the  nonessentials  of  ballot  reform,  politicians 
have  taken  advantage  of  that  confusion  to  pass  laws  granting  the  shadow 
and  not  the  substance.  They  want  to  discourage  straying  from  the  party 
fold.  Consequently  they  want  to  continue  the  premium  on  perfect  regu- 
larity. It  may  be  that  civic  organizations  are  demanding  the  adoption  of 
a  nonpartisan  ballot.  "  What  is  it  you  want  ?  "  ask  the  politicians.  Sup- 
pose the  reformers  answer  as  follows :  "  Abolish  the  party  column. 
Abolish  the  party  emblem.  Place  all  candidates'  names  under  the  various 
offices.  Arrange  them  in  alphabetical  order.  Nothing  less  will  satisfy 
us."  Every  one  of  these  things  may  be  granted  without  really  conced- 
ing anything  of  value  to  the  Independents  if  only  a  few  modifications  in 
the  interest  of  "  convenience  "  may  be  made  at  the  same  time.  Pennsyl- 
vania and  Colorado  afford  excellent  examples  of  ballots  made  in  this 
way.  Pennsylvania  uses  the  Massachusetts  ballot,  the  "  pure  Australian 
type,"  with  only  the  addition  of  a  set  of  party  squares  at  one  side  of 
the  sheet.  This  does  not  look  in  the  least  like  the  New  York  ballot,  yet 
the  straight-ticket  voter  is  favored  in  just  the  same  way  by  being  relieved 
entirely  of  the  necessity  for  scrutinizing  and  marking  separately  his  various 
candidates.  In  Colorado  (Figure  3)  the  same  result  has  been  secured  in  an 
even  more  original  fashion.  This  state  also  has  what  looks  like  a  model 
ballot,  but  it  is  robbed  of  its  virtue  by  the  printed  line  at  the  top  which 

makes  the  voter  declare:  ''  I  hereby  vote  a  straight ticket,  except 

where  I  have  marked  opposite  the  name  of  some  other  candidate." 

It  has  thus  been  easy  to  devise  official  ballots  which,  with  the  general 
appearance  of  the  pure  Australian  form,  possess  none  of  its  advantages. 
But  this  has  not  been  the  only  opportunity  of  the  ballot  tinkers.  They 
can  also  turn  out  a  party-column  ballot  which  does  not  possess  even  the 
good  qualities  of  that  openly  partisan  instrument.  In  all  the  forms  thus 
far  mentioned  the  voter  has  the  privilege,  under  some  regulations,  of 
voting  for  any  candidate  named  on  the  ballot  by  simply  making  a  mark 
opposite  that  candidate's  name.  Even  this  privilege  can  be  taken  away, 
however.  The  Maine  ballot  (Figure  4)  illustrates  how  it  may  be  done. 
It  will  be  noticed  that,  while  there  is  a  huge  party  square  at  the  head 
of  each  column,  there  are  no  small  marking  spaces  opposite  the  indi- 
vidual names.  This  is  because  the  Maine  law  permits  no  skipping  from 
one  column  to  another.  The  voter  designates  whichever  column  he 
pleases,  but  all  his  voting  must  be  done  in  that  column.  The  name  of 
Stokes  may  be  next  to  that  of  Freeman,  but  if  the  man  who  has  marked 
in  the  Republican  square  wants  a  Democrat  for  sheriff,  he  must  erase 


ELECTIONS  AND  NOMINATIONS 


69 


Freeman's  name  and  insert  Stokes's  just  as  if  it  were  not  on  the  ballot 
at  all.  In  spite  of  the  use  of  the  blanket  sheet,  the  process  of  ticket 
splitting  is  here  exactly  the  same  as  in  the  states  like  Missouri,  where 
there  is  a  separate  official  slip  for  each  party,  and  the  voter,  having 
chosen  one  slip,  must  alter  it,  if  he  prefers  some  candidate  of  another 
party,  by  "  pasters  "  or  the  writing  in  of  the  name. 

From  ballots  designed  to  make  difficult  the  voting  of  any  but  a 
straight  party  ticket,  it  is  a  natural  step  to  ballots  designed  to  make 
difficult  the  voting  of  any  but  one  particular  party  ticket.  In  this  direc- 
tion also  American  ingenuity  has  done  much  with  the  primitive  Austra- 
lian form.  The  party  emblem  has  been  mentioned  as  a  legitimate  aid  to 
the  illiterate  voter.  Its  absence  is  equally  an  aid  to  the  party  which  has 
the  larger  proportion  of  members  who  can  read  and  write.  Maryland,  a 
state  which  has  a  large  negro  population  and  no  educational  qualifica- 
tion for  voting,  has  the  pure  Massachusetts  ballot,  alphabetical  order 


FIGURE  4 


Republican 


Democrat 


For  Governor 
Henry  Zabriskie  of  Rockland 

For  Governor 
Arthur  Fuller  of  Saco 

For  Representative  to  Con<;ress 
Levi  G.  Hinds  of  Kennebunkport 

For  Representative  to  Congress 
Peter  A.  Ferguson  of  Berwick 

For  Clerk  of  Courts 
Nathaniel  Hart  of  Eliot 

For  Clerk  of  Courts 
William  Perkins  of  Skowhcgan 

For  Sheriff 
Robert  C.  Freeman  of  Eastport 

For  Sheriff 
T.  Jefferson  Stokes  of  Dill 

A  party-column  ballot  which  makes  it  as  troublesome  to  split  a  ticket  as  if  the 
names  of  alternative  candidates  were  not  on  the  sheet  at  all. 


370 


AMERICAN  STATE  GOVERNMENT 


and  all,  except  in  eleven  counties,  where  even  the  party  designation  is 
dropped  and  the  several  candidates  stand  simply  as  individuals.  Yet 
this  outwardly  impartial  arrangement  is  the  much  execrated  "  trick 
ballot."  Perfectly  simple  to  any  one  who  can  read  and  write  and  knows 
the  names  of  the  candidates  he  means  to  vote  for,  these  styles  have 
been  regarded  simply  as  puzzles  by  the  illiterate  negroes  and  as  subjects 
for  party  trickery  by  many  of  the  politicians.  In  1904  nearly  four  thou- 
sand Republicans  mistook  the  square  opposite  the  name  of  their  first 
presidential  elector  for  the  square  which  voted  all  eight  en  bloc,  and  on 
this  account  forfeited  the  other  seven  presidential  votes  to  the  party 
really  in  the  minority.  All  manner  of  stories  are  told  of  the  devices  re- 
sorted to  under  this  perverted  ballot  law.  The  names  of  candidates  have 
been  shuffled  without  warning  so  that  the  ignorant  voter  could  not  be 
told  to  vote  according  to  their  position.  Names  have  been  printed  in  old 
English  and  other  unusual  type.  The  "Repudiation"  party  was  extem- 
porized and  put  candidates  in  nomination  in  order  to  bewilder  negroes 
who  had  been  laboriously  taught  to  recognize  the  word  "  Republican." 
One  Maryland  Congressman  is  said  to  have  established  schools  in  which 
negro  voters  were  taught  to  recognize  his  Christian  name,  "  Sydney," 
by  the  two  "  ox  yokes,"  • — -  the  y's,  —  and  just  as  he  had  succeeded, 
another  "Sydney"  was  nominated  against  him  by  petition  so  there 
would  still  be  confusion. 

The  favorite  plan  for  making  one  party  vote  sure  and  mixing  up  all 
the  others  is  simply  to  eliminate  all  emblems  and  designations  and  then 
place  the  chosen  party's  nominees  in  every  instance  first.  It  then 
requires  neither  intelligence,  literacy,  nor  care  to  vote  that  ticket.  All 
three  are  needed  to  vote  any  of  the  others.  As  an  extreme  example,  the 
official  ballot  used  in  Plorida  at  the  last  presidential  election  (Figure  5) 
may  be  cited.  There  were  five  presidential  electors  then  to  be  chosen 
and  four  parties  made  nominations.  The  names  were  printed  in  small 
type,  one  below  the  other,  with  no  mark  whatever  to  indicate  where  one 
party's  group  ended  and  the  next  began.  It  was  easy  for  a  Democrat 
to  put  crosses  opposite  the  first  five,  but  the  Populist  had  to  begin  with 
number  eleven  and  check  to  number  fifteen  inclusive.  Nearly  half  the 
Populists  and  Socialists  in  Florida  and  about  one  fifth  of  the  Republicans 
failed  to  mark  their  electors  correctly  as  a  result  of  this  blind  arrangement. 

(iiven  the  complete  election  returns  of  ten  or  twenty  or  thirty  states, 
it  would  be  perfectly  possible,  without  any  previous  knowledge  of  the 
several  laws,  to  separate  those  using  nonpartisan  ballots  from  those  using 
partisan  ballots.  'J"he  latter  would  show  in  almost  all  cases  a  uniformity 
which  is  the  delight  of  the  |)arly  manager.  'I'lie  total  vote  for  one  office 
is  almost  the  same  as  the  total  vote  for  every  other  office.  Add  together 
the  figures  for  all  the  Republican  candidates  for  the  assembly  and  you 
have  very  nearly  the  Rei)ublican  vote  for  governor.  Only  some  very 
strong  motive  will  produce  any  wide  discrepancy  between  the  pluralities 


ELECTIONS  AND  NOMINATIONS 

FIGURE  5 
OFFICIAL  BALLOT 

General  Election,  Nov.  8th,  a.d.  1904 

Precinct  No.  12,  Leon  County,  Florida 

Make  a  cross  mark  ( x )  before  the  name  of  the  candidate  of  your  choice 


371 


Vote  for  One 


For  Representative  in  Congress 
3d  Congressional  District 

William  B.  Lamar 


Geo.  R.  Smith 

Lambert  M.  Ware 

Vote  for  Five 

Presidential  Electors 
H.  P.  Bailey 

J.  E.  Grady 

T.  A.  Jennings 

A.  B.  Newton 

F.  B.  Stoneman 

C.  F.  Buffman 

A.  E.  Dole 

Daniel  L.  McKinnon 

Thomas  R.  Moore 

Geo.  K.  Robinson 

Alonzo  P.  Baskin 

J.  S.  Whitney 

E.  D.  Baker 

Geo.  W.  Holmes 

G.  A.  W.  Wendell 

A.  V.  Putman 

M.  F.  Zeller 

William  R.  Shields 

A.  M.  Cushman 

John  M.  Stanley 

Vote  for  One 

For  Governor,  State  of  Florida 
Napoleon  B.  Broward 

W.  R.  Healey 

M.  B.  Macfarlane 

Part  of  Florida  ballot  in  1904,  when  nearly  half  of  the  Populist  and  Socialist 
voters  failed  to  mark  their  presidential  electors  correctly. 


372  AMERICAN  STATE  GOVERNMENT 

of  candidates  on  the  same  ticket.  In  states  of  the  other  class  all  manner 
of  fluctuations  will  be  found,  irregularities  that  correspond  exactly  to 
the  variations  of  popular  feeling  and  interest.  A  popular  candidate  with 
a  good  record  will  run,  as  a  rule,  considerably  farther  ahead  of  an  un- 
popular colleague  with  a  bad  record  than  he  will  in  the  states  using  the 
party  circle.  Not  so  many  electors  will  vote  on  the  unimportant  offices 
as  on  the  important. 

It  is  in  such  a  comparison  that  the  real  affinities  of  the  "  compromise  " 
ballots  here  described  betray  themselves.  A  ballot  of  the  party-column 
style,  but  without  the  party  circles,  such  as  Kansas  abandoned  but  Mon- 
tana has  still,  affects  the  returns  in  just  the  same  way  as  that  of  Massa- 
chusetts. On  the  other  hand,  when  an  '"  alphabetical "  ballot  has  had 
party  circles  added,  the  statement  of  vote  will  present  just  the  same 
parallelisms  and  equalities  which  indicate  the  workings  of  the  familiar 
party-column  type. 

There  are  several  state  legislatures  in  which  ballot  reform  is  a  promi- 
nent issue.  In  every  one  there  will  doubtless  be  a  proposal  to  adopt  the 
pure  Australian  ballot.  Then  will  arise  some  one  to  say :  "  Give  us 
perfect  equality  between  the  independent  voter  and  the  party  man  by 
all  means,  but  do  it  by  making  it  easier  to  vote  a  split  ticket,  not  harder 
to  vote  a  straight  one."  As  a  piece  of  practical  advice  this  familiar 
counsel  is  altogether  meaningless.  If  Mr.  A  wants  to  vote  for  a  single 
candidate  outside  his  own  party,  he  cannot,  under  any  conceivable  ballot 
law,  express  his  purpose  with  less  than  two  marks,  and  so  long  as  he 
must  make  two  marks,  he  is  not  on  an  equality  with  Mr.  B,  who  can 
vote  his  ticket  with  one.  If  only  the  absolute  and  not  the  relative  con- 
venience of  voting  is  to  be  considered,  it  may  be  admitted  at  once  that 
the  party-column  ballot  which  Governor  Hughes  advised  the  legislature  of 
New  York  to  abolish  makes  it  as  easy  to  split  a  ticket  as  any  form  that 
can  be  devised.  The  only  trouble  is  that  it  makes  straight-ticket  voting 
still  easier.  If  equality  between  them  is  worth  securing,  it  can  be  practi- 
cally secured  by  taking  away  the  straight-ticket  circles,  whether  the  ballot 
that  is  left  has  the  group  by  offices  or  the  party  column,  emblems  or  no 
emblems. 

THE  SHORT   BALLOT ^ 

(A    NKW    PLAN    OF    REFORM) 

By  Richard  S.  Guilds 

Do  you  know  that  ours  is  the  only  habitually  misgoverned  democracy  ? 
Other  democracies,  Canada,  and  the  English,  French,  and  German  cities, 
are  generally  well  governed,  many  of  them  si^lcndidlv  governed.  Their 
councils  and  legislatures  stay  clean  for  decades  automatically  without 
need  for  public  uprisings  to  clean  them  out.  True,  they  sometimes  suffer 

1  A  pamphlet  published  by  the  Short-Ballot  Association. 


ELECTIONS  AND  NOMINATIONS  373 

from  graft,  but  it  is  local,  haphazard,  and  unorganized,  like  graft  in  busi- 
ness life.  But  with  us  misgovernment  is  universal  and  ever  present. 
Every  state  and  every  city  is  constantly  at  w^ar  with  it.  The  brand-new 
city  of  Gary  will  begin  to  grapple  with  it  as  soon  as  there  is  an  election. 
And  the  success  of  the  forces  of  righteousness  is  always  temporary,  like 
sweeping  back  flooding  water  with  a  broom.  We  say  truly,  "A  reform 
administration  is  never  reelected."  Good  administration  is  actually  ab- 
normal in  American  cities  and  states.    Maladministration  is  the  normal. 

This  condition,  unique  among  democracies,  indicates  the  existence  of 
some  peculiarity  in  our  system  of  government  as  the  underlying  cause. 

Starting  at  the  broad  base  of  our  structure,  the  voters,  we  notice  one 
unique  phenomenon  which  is  so  familiar  to  us  that  we  usually  overlook 
it  entirely  ;  that  is,  our  habit  of  voting  blind.  Of  course  intelligent  citizens 
do  not  vote  without  knowing  what  they  are  doing.  Oh,  no  !  You,  Mr. 
Reader,  for  instance,  you  vote  intelligently  always !    Of  course  you  do  ! 


Confidential  Census 

Yes,  13% 

Do  you  know  the  name  of  the  new  state  treasurer  just  elected  ? 

Do  you  know  the  name  of  the  present  state  treasurer  ? 

Yes,  25% 

Do  you  know  the  name  of  the  new  state  assemblyman  for  this 

district  ? 

Yes,  30% 

Do  you  know  the  name  of  the  defeated  candidate  for  assembly- 

man in  this  district  ? 

Yes,  20% 

{Knew  both  of  above,  16%) 

Do  you  know  the  name  of  the  surrogate  of  this  county  ? 

Yes,  35% 

Do  you  know  the  name  of  your  alderman  ? 

Yes,  15% 

Do  you  know  whether  your  alderman  was  one  of  those  who 

voted  against  the  increase  in  the  police  force  last  year  t 

Yes,    2% 

Are  you  in  active  politics  ? 

Yes,    4% 

The  intelligence  (?)  of  the  "three-story-brown-stone-house  vote"  in  the 
most  independent  assembly  district  in  Brooklyn.  Data  collected  immediately 
after  election,  1908. 

This  unique  and  incurable  ignorance  of  the  American  voter  is  the  raison 
d'etre  of  "  machine  "  politics. 

In  other  democracies  (England,  Canada,  etc.)  there  are  but  few  elective 
officers,  and  every  voter  knows  them  all.  There  is  no  such  ignorance,  hence 
no  "machine"  rule,  no  "ward  politicians,"  and  no  organized  corruption. 


374  AMERICAN  STATE  GOVERNMENT 

But  whom  did  you  vote  for  for  surrogate  last  time  ?  You  don't  know  ? 
Well  then,  whom  did  you  support  for  state  auditor  ?  for  state  treasurer  ? 
for  clerk  of  the  court  ?  for  supreme  court  judge  ?  And  who  is  your 
alderman  ?  Who  represents  your  district  at  the  state  capitol  ?  Name, 
please,  all  the  candidates  you  voted  for  at  the  last  election.  Of  course 
you  know  the  president  and  the  governor  and  the  mayor,  but  there  was 
a  long  list  of  minor  officers  besides.  Unless  you  are  active  in  politics  I 
fear  you  flunk  this  examination.  If  your  ballot  had  by  a  printer's  error 
omitted  the  state  comptroller  entirely,  you  would  probably  not  have 
missed  it.  You  ignored  nine  tenths  of  your  ballot,  voting  for  those  you 
did  know  about  and  casting  a  straight  party  ticket  for  the  rest,  not 
because  of  party  loyalty,  but  because  you  did  not  know  of  anything 
better  to  do.  You  need  not  feel  ashamed  of  it.  Your  neighbors  all  did 
the  same ;  ex-President  Eliot  of  Harvard,  the  "  ideal  citizen,"  confessed 
in  a  public  address  recently  that  he  did  it  too.  It  is  a  typical  and  uni- 
versal American  attitude.  We  all  vote  blind.  Philadelphia  has  even 
elected  imaginary  men.  The  intelligence  of  the  community  is  not  at 
work  on  any  of  the  minor  offices  on  the  ballot.  The  average  American 
citizen  never  casts  a  completely  intelligent  vote. 

This  is  not  all  the  fault  of  the  voter.  To  cast  a  really  intelligent  ballot 
from  a  mere  study  of  newspapers,  campaign  literature,  and  speeches  is 
impossible,  because  practically  nothing  is  ever  published  about  the  minor 
candidates.  And  this  in  turn  is  not  always  the  fault  of  the  press.  In 
New  York  City  the  number  of  elective  offices  in  state,  city,  and  county 
to  be  filled  by  popular  vote  in  a  cycle  of  four  years  is  nearly  five  hun- 
dred. In  Chicago  the  number  is  still  greater.  Philadelphia,  although 
smaller  than  either  city,  elects  more  people  than  either.  No  newspaper 
can  give  publicity  to  so  many  candidates  or  examine  properly  into  their 
relative  merits.  The  most  strenuous  minor  candidate  cannot  get  a  hear- 
ing amid  such  clamor.  And  the  gossip  around  the  local  headquarters 
being  too  one-sided  to  be  trusted  by  a  casual  inquirer,  a  decj)  working 
])ersonal  acquaintance  with  politics,  involving  years  of  experience  and 
study,  becomes  necessary  before  a  voter  who  wants  to  cast  a  wholly  in- 
telligent ballot  can  obtain  the  facts. 

Plainly  the  voter  is  overburdened  with  more  questions  than  he  will 
answer  carefully,  for  it  is  certain  that  the  average  citizen  cannot  afford 
the  time  to  fulfill  such  unreasonable  requirements.  The  voters  at  the 
polls  are  the  foundation  of  a  democracy,  and  this  universal  habit  of 
voting  blind  constitutes  a  huge  break  in  that  foundation  which  is  serious 
enough  to  account  for  the  toppling  of  the  whole  structure,  provided  we 
can  trace  out  a  connection  between  this  as  a  cause  and  misgovernment 
as  the  effect. 

No  one  will  deny  that  if  nine  tenths  of  the  citizens  ignored  politics 
and  did  not  vote  at  all  on  election  day,  the  remaining  tenth  would  govern. 


ELECTIONS  AND  NOMINATIONS  375 

And  when  practically  all  vote  in  nine-tenths  ignorance  and  indifference, 
about  the  same  delegation  of  power  occurs.  The  remaining  fraction, 
who  do  give  enough  time  to  the  subject  to  cast  an  intelligent  ballot,  take 
control. 

That  fraction  we  call  "politicians"  in  our  unique  American  sense  of 
the  word.  A  "politician  "  is  a  political  specialist.  He  is  one  who  knows 
more  about  the  voter's  political  business  than  the  voter  does.  He  knows 
that  the  coroner's  term  will  expire  in  November,  and  he  contributes 
toward  the  discussion  involved  in  nominating  a  successor,  whereas  the 
voter  hardly  knows  a  coroner  is  being  elected. 

The  politicians  come  from  all  classes  and  ranks,  and  the  higher  intelli- 
gence of  the  community  contributes  its  full  quota.  Although  they  are 
only  a  fraction  of  the  electorate,  they  are  a  fair  average  selection,  and 
they  would  give  us  exactly  the  kind  of  government  we  all  want  if  only 
they  could  remain  free  and  independent  personal  units.  But  the  impulse 
to  organize  is  irresistible.  Convenience  and  efficiency  require  it  and 
the  "organization"  springs  up  and  cements  them  together.  Good  men 
who  see  the  organization  go  wrong  on  a  nomination  continue  to  stay  in 
and  to  lend  their  strength,  not  bolting  until  moral  conditions  become 
intolerable.  \\'ere  these  men  not  bound  by  an  organization  with  its 
social  and  other  nonpolitical  ties,  their  revolt  would  be  early,  easy,  and 
effective,  and  every  bad  nomination  would  receive  its  separate  and  pro- 
portionate punishment  in  the  alienation  of  supporters. 

The  control  of  an  active  political  organization  will  gravitate  always 
toward  a  low  level.  The  doors  must  be  open  to  every  voter,  —  examina- 
tion of  his  civic  spirit  is  impossible,  —  and  greed  and  altruism  enter 
together.  Greed  has  most  to  gain  in  a  factional  dispute  and  is  least 
scrupulous  in  choice  of  methods.  The  bad  politician  carries  more 
weapons  than  the  politician  who  hampers  himself  with  a  code  of  ethics 
one  degree  higher.  Consequently  corruption  finally  dominates  any 
machine  that  is  worth  dominating  and  sinks  it  lower  and  lower  as  worse 
men  displace  better,  until  the  limit  of  public  toleration  is  reached  and 
the  machine  receives  a  setback  at  election.  That  causes  its  members  to 
clean  up,  discredit  the  men  who  went  too  far,  and  restore  a  standard 
high  enough  to  win,  —  which  standard  immediately  begins  to  sag  again 
by  the  operation  of  the  same  natural  principle. 

Reformers  in  a  nearsighted  way  are  constantly  endeavoring  to  main- 
tain pure  political  organizations  and  reelect  reform  administrations. 
Suppose,  however,  that  the  Citizens'  Union  of  New  York,  which  is  at 
present  sincerely  bent  on  improving  the  condition  of  politics,  should 
succeed  in  carrying  the  city  for  its  tickets  several  times  in  succession. 
After  the  first  election,  small  political  organizations  which  had  aided 
toward  the  victory  would  rush  in,  clamoring  for  their  share  of  the  plunder. 
For  a  term  or  two  the  refomicrs  might  be  able  to  resist  the  pressure. 


t 


76  AMERICAN  STATE  GOVERNMENT 


Nevertheless  the  possession  of  power  by  their  party  would  attract  the 
grafters  ^ ;  they  would  find  themselves  accepting  assistance  from  men 
who  were  in  politics  for  what  there  was  in  it,  —  men  who  wanted  to  use 
the  power  and  patronage  that  lay  at  hand  unutilized,  —  and  those  men 
would  in  time,  working  within  the  Union,  depose  the  original  heads  of 
the  party  and  substitute  "  more  practical "  leaders  of  their  own  kind, 
until  in  time  the  Citizens'  Union  would  itself  need  reforming. 

This  was  exactly  what  happened  to  Tammany  Hall,  which  was  clean 
at  the  beginning. 

Theoretically  there  is  always  the  threat  of  the  minority  party  which 
stands  ready  to  take  advantage  of  every  lapse,  but  as  there  is  no  debate 
between  minor  candidates,  no  adequate  public  scrutiny  or  comparison 
of  personalities,  the  minority  party  gets  no  credit  for  a  superior  nomi- 
nation and  often  finds  that  it  can  more  hopefully  afford  to  cater  to  its 
own  lowest  elements.  In  fact,  it  may  be  only  the  dominant  party  which 
can  venture  to  affront  the  lowest  elements  of  its  membership  and  nomi- 
nate the  better  candidate. 

The  essence  of  our  complaint  against  our  government  is  that  it  repre- 
sents these  easily  contaminated  political  organizations  instead  of  the 
citizens.  Naturally!  When  practically  none  but  the  politicians  in  his  dis- 
trict are  aware  of  his  actions  or  even  of  his  existence,  the  ofiiceholder 
who  refuses  to  bow  to  their  will  is  committing  political  suicide. 

Sometimes  the  interests  of  the  politician  and  the  people  are  parallel, 
but  sometimes  they  are  not,  and  the  officeholder  is  apt  to  diverge  along 
the  path  of  politics.  An  appointment  is  made,  partly  at  least,  to  strengthen 
the  party,  since  the  appointee  has  a  certain  following.  A  bill  is  considered 
not  on  its  simple  merits  but  on  the  issue,  "  Who  is  behind  it  ? "  "  If  it 
is  Boss  Smith  of  Green  County  that  wants  it,  whatever  his  reasons,  we 
must  placate  him  or  risk  disaffection  in  that  district."  So  appointments 
and  measures  lose  their  original  and  proper  significance  and  become  mere 
pawns  in  the  chess  game  of  politics  which  aims  to  keep  "  our  side  "  on 
top.  The  officeholders  themselves  may  be  upright,  bribe-proof  men,  — 
they  usually  are,  in  fact.  But  their  failure  to  disregard  all  exigencies  of 
party  politics  constitutes  misrepresentative  government,  and  Boss  Smith 
of  Green  (>)unty  can  privately  sell  his  influence  if  he  chooses,  whereby 
the  public  is  in  the  end  a  heavy  sufferer. 

Thus  the  connection  between  the  long  ballot  and  misgovernment  is 
established :  so  long  as  we  intelligent  citizens,  by  voting  the  long  ballot 
blindly,  continue  to  intrust  large  governing  power  to  easily  contaminated 
organizations  of  political  specialists,  we  must  expect  to  get  the  kind  of 
government  that  will  naturally  proceed  from  such  trusteeship. 

Every  factor  in  this  sequence  is  a  unique  American  phenomenon.    The 

1  Mr.  Cutting,  the  head  of  the  Union,  announced,  in  anticipation  of  the  igoy  municipal 
election,  that  the  Union  did  not  desire  a  big  enroihncnt  on  account  of  the  inevitable  con- 
tamination it  involved. 


ELECTIONS  AND  NOMINATIONS 


in 


long  ballot  with  its  variegated  list  of  trivial  offices  is  to  be  seen  nowhere 
but  in  the  United  States.  The  English  ballot  never  covers  more  than 
three  offices,  usually  only  one.  In  Canada  the  ballot  is  less  commonly 
limited  to  a  single  office,  but  the  number  is  never  large  and  includes  only 
offices  that  are  of  such  importance  as  to  attract  close  scrutiny  by  the 
public.  To  any  Englishman  or  Canadian  our  long  ballot  is  astonishing 
and  our  blind  voting  appalling.  A  Swiss  would  have  to  live  four  hundred 
years  to  vote  upon  as  many  men  as  an  American  undertakes  to  elect  in 
one  day.  The  politicians  as  a  professional  class,  separate  from  popular 
leaders  or  officeholders,  are  unknown  in  other  lands,  and  the  very  word 
"  politician  "  has  a  special  meaning  in  this  country  which  foreigners  do 
not  attach  to  it.  And  government  from  behind  the  scenes  by  politicians, 
in  endless  opposition  to  government  by  public  opinion,  is  the  final  unique 
American  phenomenon  in  the  long  ballot's  train  of  consequences. 

The  blind  vote,  of  course,  does  not  take  in  the  whole  ballot.  Certain 
conspicuous  offices  engage  our  attention  and  we  all  vote  on  those  with 
discrimination  and  care.  We  go  to  hear  the  speeches  of  the  candidates 
for  conspicuous  offices,  those  speeches  are  printed  in  the  daily  papers 
and  reviewed  in  the  weeklies,  the  candidates  are  the  theme  of  editorials, 
and  the  intelligent  voter  who  takes  no  part  in  politics  votes  with  knowl- 
edge on  certain  important  issues. 

In  an  obscure  contest  on  the  blind  end  of  the  ballot  merit  has  little 
political  value,  but  in  these  conspicuous  contests,  where  we  actually  com- 
pare man  and  man,  superior  merit  is  a  definite  asset  to  a  nominee. 
Hence  in  the  case  of  an  obscure  nomination  the  tendency  is  automati- 
cally downward,  but  in  a  conspicuous  nomination  the  tendency  is  upward. 

Accordingly,  while  we  elect  aldermen  who  do  not  represent  us,  and 
state  legislatures  which  obey  the  influences  of  unseen  powers,  we  are  apt 
to  do  very  well  when  it  comes  to  the  choice  of  a  conspicuous  officer  like 
a  president,  a  governor,  or  a  mayor.  For  mayor,  governor,  or  president 
we  are  sure  to  secure  a  presentable  figure,  always  honest  and  frequently 
an  able  and  independent  champion  of  the  people  against  the  very  interests 
that  nominated  him.  We  are  apt  to  reelect  such  men,  and  the  way  we 
sweep  aside  hostile  politicians  where  the  issue  is  clear  shows  how  power- 
fully the  tide  of  our  American  spirit  sets  toward  good  government  when 
the  intelligence  of  the  community  finds  a  channel;  witness  Roosevelt, 
Taft,  Hughes,  Deneen,  Folk,  and  a  host  of  mayors. 

The  "  town  meeting "  has  often  been  pointed  to  as  an  instance  of 
democracy  at  its  best.  A  village  always  governs  itself  in  close  accordance 
with  the  desires  of  its  people.  New  England  selectmen  are  the  finest 
men  in  town.  That  is  because  every  voter  knows  personally  the  charac- 
ter of  the  candidates  and  elects  with  knowledge,  registering  his  inde- 
pendent personal  opinion  on  every  part  of  his  ballot.  Such  an  assemblage 
could  elect  a  hundred  men  at  one  sitting  and  do  it  well  and  wisely.  It 
comes  outside  the  range  of  this  discussion,  but  it  illustrates  the  truth. 


378  AMERICAN   STATE  GOVERNMENT 

that  when  the  electorate  is  sufficiently  informed  to  have  an  opinion  on 
personalities,  that  opinion  is  normally  productive  of  good  government. 

The  success  in  western  states  of  the  direct  election  of  United  States 
senators  is  another  proof  of  the  principle  that  any  conspicuous  office 
where  the  voters  come  to  know  their  man  is  beyond  the  control  of  cor- 
ruptive forces. 

Washington,  D.  C,  is  governed  by  a  board  of  three  men  appointed  at 
long  intervals  by  the  federal  government.  The  inhabitants  of  the  District 
have  no  votes.  Surely  here  is  a  place  to  find  an  inert  bureaucracy  con- 
sulting its  own  comfort  first  and  the  people  only  by  courtesy.  But,  on 
the  contrary,  these  three  men,  made  conspicuous  before  the  people  by 
their  fewness  and  importance,  are  more  sensitive  to  public  opinion  than 
elected  officers  in  other  cities. 

Sometimes  there  is  rank  misgovernment  in  a  conspicuous  office,  as 
when  Van  Wyck  ruled  New  York  City ;  but,  as  is  rather  usual  at  such 
times,  a  reform  wave  followed  and  his  party  was  punished  by  a  defeat 
at  the  polls.  Since  then  Tammany  has  temporarily  conceded  the  con- 
spicuous offices  to  the  people,  nominating  thereto  men  of  independent 
character  and  even  accepting  two  who  had  already  been  nominated  by 
the  reformers.  It  has  been  content  with  graft  from  borough  presidents, 
the  aldermen,  and  its  friends  in  the  lower  grades  of  the  departments. 

Misgovernment  is  secure  only  in  the  minor  offices,  in  the  shadowy 
places  where  the  spot  light  of  publicity  rarely  wanders.  When  the  rats 
venture  out  of  these  obscurities  into  the  blazing  light,  it  is  to  nibble  the 
cake  cautiously,  and  always  with  timid  eyes  upon  that  dread  giant,  the 
public,  ready  to  scamper  if  he  stirs.  If,  growing  confident  from  long 
immunity,  they  become  too  bold  and  noisy,  punishment,  clumsy  but 
heavy,  suddenly  swoops  upon  them. 

And  so  in  these  conspicuous  offices  —  those  on  which  we  do  not  vote 
blind  —  we  secure  fairly  good  government  as  a  normal  condition,  con- 
sidering that  the  organized  and  skillful  opposition  which  always  faces 
us  occupies  a  position  of  great  strategic  advantage  in  possession  of  the 
nominating  machinery. 

We  cannot  hope  to  teach  or  force  the  entire  citizenship  to  scrutinize 
the  long  ballot  and  cease  to  vote  blind  on  most  of  it.  The  mountain  will 
not  come  to  Mahomet ;  Mahomet  then  must  go  to  the  mountain.  We 
must  shotien  the  Inillot  to  a  point  where  the  average  man  will  vote  intelli- 
gently without  giving  to  politics  more  attention  than  he  does  at  present. 
That  means  making  it  very  short,  for  if  it  exceeds  by  even  a  little  tiic  reten- 
tive capacity  of  the  average  voter's  memory,  the  "  political  specialist " 
is  created. 

A  voter  could  remember  the  relative  merits  of  probably  about  five  sets 
of  candidates,  and  coukl  keep  that  many  separate  contests  clear  in  his 
mind,  but  he  would  probably  begin  to  vote  blind  on  some  of  the  names 
if  the  number  were  more  than  five.    Also  we  must  take  all  unimportant 


ELECTIONS  AND  NOMINATIONS 


179 


offices  off  the  ballot,  since  the  electorate  will  not  bother  with  such  trifles 
whether  the  ballot  be  short  or  not.  Why  indeed  should  fifty  thousand 
voters  all  be  asked  to  pause  for  even  a  few  minutes  apiece  to  study  the 
relative  qualifications  of  Smith  and  Jones  for  the  petty  $iooo-a-year  post 
of  county  surveyor?  Any  intelligent  citizen  may  properly  have  bigger 
business  on  his  hands  ! 

To  be  pictorial,  let  us  see  how  a  revised  schedule  of  elections  might 
look  if  we  put  into  the  realm  of  appointive  offices  as  many  as  possible 
of  those  which  we  now  ignore.  All  country  offices,  many  city  positions, 
and  the  tail  of  the  state  ticket  would  thus  be  disposed  of  and  the  ballots 
might  look  something  like  this :  (New  York  state  titles) 


First  Year 

Second  Year 

Third  Year 

Fourth  Year 

President  and  Vice 

Governor,  four  years 

Congressman, 

State  senator,  four 

President,  four 

two  years 

years 

years 

Congressman,  two 

State  assemblyman, 

Mayor,  four  years 

State  assemblyman. 

years 

two  years 

two  years 

City  councilman, 

City  councilman. 

two  years 

two  years 

This  is  merely  organizing  the  state  and  city  as  simply  as  the  federal 
government.  There  is  endless  room  for  discussion  on  the  details  and 
many  other  arrangements  could  be  devised.  This  schedule  provides  for 
every  office  which  must  be  kept  within  the  realm  of  politics.  It  provides 
short  ballots  which  every  man  would  vote  intelligently  without  calling  on 
a  political  specialist  to  come  and  guide  the  pencil  for  him. 

On  such  a  short-ballot  basis  the  entry  of  our  best  men  into  public  life 
becomes  possible.  To-day  the  retired  business  man,  for  instance,  who 
is  willing  to  devote  his  trained  mind  and  proven  executive  ability  to  the 
service  of  his  city  finds  it  difficult  to  enter  public  life  even  as  a  humble 
alderman.  He  cannot  win  as  an  independent,  for  the  voters  do  not  dis- 
tinguish his  voice  in  the  political  hubbub.  He  must  get  his  name  on  the 
ticket  of  the  dominant  party,  which  can  elect  him,  regardless  of  whether 
he  makes  a  fierce  campaign  or  remains  silent  on  every  issue.  In  seeking 
this  nomination  direct  primaries  will  help  him  a  little,  but  in  the  confu- 
sion attending  the  making  of  nominations  for  a  multitude  of  offices,  he 
is  again  unable  to  attract  much  attention,  and  the  "  machine,"  swinging 
its  solid  blocks  of  well-drilled  voters  to  the  support  of  some  loyal  old-time 
pillar  of  the  "  organization,"  is  likely  to  defeat  him,  despite  his  manifest 
superiority  of  character.  His  only  hopeful  resort  is  to  go  down  into  the 
unfamiliar  and  uncongenial  shaded  underworld  of  ward  politics,  kotow 


:.8o  AMERICAN  STATE  GOVERNMENT 

to  district  leaders  and  captains  whose  social  and  business  standing  is  per- 
haps inferior- to  his  own,  and  satisfy  their  queries,  "  What  have  you  done 
for  the  party ? "  and  "What  will  you  do  for  us ? "  Such  procedure  being  at 
least  distasteful  and  probably  stultifying,  his  activities  turn  toward  philan- 
thropies and  recreations.  The  city  has  thus  refused  his  proffered  services  ; 
has  turned  away  the  man  who  considered  the  office  as  an  opening  for  civic 
usefulness,  in  favor  of  one  who  probably  wanted  it  as  a  good  job. 

But  if  he  be  conspicuous  as  an  important  and  almost  solitary  figui-e 
before  his  prospective  constituents,  such  a  man  can  easily  make  the  voter 
listen  and  consider,  and  his  superior  merit  will  be  an  all-important  asset 
to  him.  The  hostile  politician  who  prates  of  "  regularity  "•  will  find  the 
voter  replying  with  facts  regarding  the  personality  and  principles  of  the 
candidate,'  and  the  discussion  shifts  to  a  new  level.  If  the  politician  can 
win  over  the  voter  on  that  level,  well  and  good.  That  is  leadership,  not 
bossism,  and  is  unobjectionable. 

After  such  an  election  this  conspicuousness  will  continue,  encouraging 
good  behavior  in  office.  The  legislator  will  fear  public  indignation,  be- 
cause his  constituents,  damning  a  measure,  will  also  damn  him  specifically 
for  his  part  in  it.  Likewise,  if  deserving,  he  can  get  popular  support 
over  the  heads  of  any  political  coterie  whom  he  ventures  to  disobey. 

It  may  be  objected  that  to  take  the  minor  offices  off  the  state  ticket, 
for  instance,  and  make  them  appointive  by  the  governor  would  be  giving 
too  much  power  to  the  governor.  Well,  somebody,  we  rarely  know  who, 
practically  appoints  them  now.  There  are  other  answers,  but  that  one 
is  sufficient. 

How  an  overdose  of  democracy  creates  oligarchy  is  illustrated  in  Tam- 
many Hall,  which  would  appear  to  be,  in  its  form  of  internal  government, 
the  most  perfect  democracy  conceivable.  But  the  primary  ballot  contains 
from  three  hundred  to  a  thousand  names  and  bossism  is  thereby  intrenched 
absolutely. 

Broadly  speaking,  the  proposal  to  make  a  drastic  reduction  in  the 
amount  of  electing  to  be  done  is  not  a  new  idea  historically,  but  is  merely 
a  reversion  to  original  principles.  In  the  early  days  of  the  republic  there 
was  no  such  multiplicity  of  elective  offices  as  now,  and  until  the  thirties 
there  were  no  "  machines  "  of  the  modern  type  and  no  professional  poli- 
tics. Then  the  wave  of  Jacksonian  democracy  swept  the  country  with 
a  new  and  then  unfeared  doctrine  of  rotation  in  office.  For  the  sake  of 
rotation  many  administrative  offices  were  made  elective,  the  ballots  be- 
came too  long  to  be  written  by  hand  by  the  voter,  —  too  long  to  be  even 
comprehended  by  the  voter,  —  and  the  "political  specialist"  came  into 
existence  as  a  necessary  intermediary  between  the  people  and  their  officials. 

Fighting  misgovernment  now  is  like  fighting  the  wind.  We  must  get 
on  a  basis  where  the  good  intentions  of  the  average  voter  find  intelligent 
expression  on  the  entire  ballot,  so  as  to  produce  good  government  as  a 
normal  condition,  i.e.  good  government  which  regularly  gets  reelected  as 


ELECTIONS  AND  NOMINATIONS  38 1 

a  matter  of  course  by  overwhelming  majorities  without  a  great  fight. 
Impossible  in  this  country  ?  No.  Galveston  has  it,  with  its  government 
by  a  Commission  of  Five.  This  commission  has  without  scandal  carried 
through  tremendous  public  improvements  (raising  the  ground  level  to 
prevent  another  flood),  and  at  the  same  time  has  reduced  the  public  debt 
and  the  tax  rate.  That  is  good  administration.  More  than  that,  it  gets 
reelected  by  overwhelming  majorities  and  has  not  been  in  peril  at  any 
election.  The  "  Old  Crowd  "  that  misgoverned  this  city  for  years  holds 
only  20  per  cent  of  the  vote  now,  and  concedes  without  contest  the 
reelection  of  three  of  the  five  good  commissioners.  And  the  total 
campaign  expenses  of  electing  the  right  men  are  only  $350. 

It  has  been  thought  that  this  was  the  fruit  of  correct  organization, 
analogous  to  a  business  corporation  with  its  board  of  directors.  But  there 
are  many  other  elected  commissions  and  boards  in  the  United  States,  — 
County  Commissions,  Boards  of  Education,  Trustees  of  the  Sanitary 
District,  Boards  of  Assessors,  etc.,  —  and  they  are  not  conspicuously 
successful ;  but,  in  fact,  such  organization  often  serves  only  to  scatter 
responsibility  and  shelter  corruption.  No  1  good  government  is  entirely 
a  matter  of  getting  the  right  men  in  the  first  place.  Nothing  else  is  so 
vital.  No  system,  however  ingenious,  will  make  bad  men  give  good 
government  or  keep  good  men  from  getting  good  results.  To  get  the 
right  men  is,  first  of  all,  a  matter  of  arranging  for  the  maximum  amount 
of  concentrated  public  scrutiny  at  the  election. 

Were  it  otherwise,  we  would  find  misgovernment  in  British  cities,  which, 
except  for  this  feature,  are  ideally  organized  from  an  American  grafter's 
point  of  view.  The  British  city  authorities  are  hampered  most  unjustly 
by  a  hostile  House  of  Lords,  their  machinery  of  government  is  ancient 
and  complicated,  and  their  big  councils,  with  committees  exercising  ex- 
ecutive management  over  the  departments,  with  ample  opportunity  for 
concealment  of  wrongdoing,  with  no  restraining  civil-service  examina- 
tions, with  one  tenth  of  the  laboring  population  on  the  municipal  pay- 
rolls, would  apparently  provide  an  impregnable  paradise  for  the  American 
politician  of  the  lowest  type.  But  the  ballot  for  an  English  municipal 
election  can  be  covered  by  the  palm  of  the  hand.  It  contains  usually  the 
names  of  two  candidates  for  one  office,  member  of  the  council  for  the 
ward.  (The  council  elects  the  mayor,  the  aldermen,  and  all  other  city 
officers.)  Blind  voting  on  so  short  a  ballot  is  hardly  conceivable.  Every 
voter  is  a  complete  politician  in  our  sense  of  the  word.  The  entire  intel- 
ligence of  the  community  is  in  harness,  pulling,  of  course,  toward  good 
government.  An  American  ward  politician  in  this  barren  environment, 
unaided  by  any  vast  blind  vote,  could  only  win  by  corrupting  a  plurality 
of  the  whole  electorate,  a  thing  that  is  easily  suppressed  by  law,  even  if 
it  were  not  otherwise  a  manifest  impossibility.  So  there  are  no  ward 
politicians  in  England  (nor  in  Canada),  no  professional  politics,  and 
misgovernment  is  abnormal. 


382  AMERICAN  STATE  GOVERNMENT 

Similarly,  Galveston  concentrated  the  attention  of  the  voters  sharply 
upon  candidates  for  only  five  offices,  all  very  important.  The  press 
could  give  adequate  attention  to  every  one,  and  in  consequence  every 
intelligent  voter  in  his  easy-chair  at  home  formed  opinions  on  the  whole 
five  and  had  a  definite  notion  of  the  personality  of  every  candidate.  In 
such  a  situation  the  ward  politician  had  no  function.  There  was  no  igno- 
rant laissezfaire,  no  mesh  of  detail  for  him  to  trade  upon.  He  became 
no  more  powerful  than  any  other  citizen,  and  his  only  strength  lay  in 
whatever  genuine  leadership  he  possessed.  Moreover,  if  he  nominated 
men  who  could  stand  the  fierce  limelight  and  get  elected,  they  would, 
ipso  facto,  probably  be  men  who  would  resist  his  attempt  to  control  them 
afterward.  Or  if  they  did  cater  to  him,  it  would  be  difficult  to  do  his 
bidding  right  in  the  concentrated  glare  of  publicity  where  the  responsi- 
bility could  be  and,  what  is  much  more  vital,  would  be  correctly  placed 
by  every  voter.  And  so  the  profession  of  politics  went  out  of  existence 
in  Galveston  and  the  ward  politician  who  had  misgoverned  the  city  for 
generations  went  snarling  into  oblivion. 

The  Galveston  plan  would  be  better  yet  if  the  commissioners  were 
elected  one  at  a  time  for  long  terms  in  rotation.  Then  the  public  scrutiny 
at  election  time  would  focus  still  more  searchingly  on  the  candidates  and 
merit  would  increase  still  further  in  value  as  a  political  asset. 

"  Politics,"  seeking  reentrance  into  Galveston,  would  make  depart- 
ment heads,  etc.,  elective  ("  make  them  directly  responsible  to  the  people 
and  let  the  pee-pul  rule  "). 

Suppose  that  they  should  increase  the  commission  to  thirty  members 
elected  "at  large,"  with  variegated  powers  and  functions.  Straightway 
tickets,  cooked  up  by  "  leaders,"  would  reappear,  and  the  voter,  facing 
a  huge  list  of  names,  most  of  which  he  had  hardly  heard  of,  would 
impotently  "  take  program  "  and  concede  control  to  a  little  but  active 
minority,  the  politicians. 

But  suppose  again  that  the  enlarged  commission  be  elected  not  "  at 
large,"  but  by  wards,  one  member  to  a  ward.  'J'he  voter  again  has  only 
one  decision  to  make  instead  of  thirty.  Newspaper  publicity  is  weakened 
by  division,  but  this  weakness  is  now  repaired  by  neighborhood  acquaint- 
ance and  the  candidate's  opportunity  to  make  himself  personally  known 
to  a  large  portion  of  his  constituency.  Once  more  the  voter  registers 
an  opinion  instead  of  blindly  ratifying  the  work  of  a  party  organization. 
The  ward  politician  is  again  left  without  a  function.  1  lis  popularity  may 
avail  in  a  slum  ward  and  he  may  thus  elect  .some  of  the  commission,  but 
he  will  not  have,  from  any  citizen  who  is  intelligent  enough  to  do  his 
own  thinking,  that  blind  acquiescence  which  in  other  conditions  had  been 
the  bed  rock  of  his  power. 

Just  how  we  are  to  get  rid  of  ihe  great  undigested  part  of  our  long 
ballot  is  a  small  matter  so  long  as  we  get  rid  of  it  somehow.  Govern 
a  city  by  a  big  board  of  aldermen  if  you  like,  or  by  a  commission  as 


ELECTIONS  AND  NOMINATIONS  -8^^ 

small  as  you  dare  make  it.  Readjust  state  constitutions  in  any  way  you 
please,  lerms  of  tenure  in  office  can  be  lengthened.  Many  officers,  now 
elected,  can  be  appointed  by  those  we  do  elect.  But  manage  somehow 
to  get  our  eggs  into  a  few  baskets,  —  the  baskets  that  we  watch. 

For  remember  that  we  are  not  governed  by  public  opinion,  but  by 
public-opinion-as-expressed-through-the-pencil-point-of-the-average-voter- 
in-his-election-booth.  And  that  may  be  a  vastly  different  thing !  Public 
opinion  can  only  work  in  broad  masses,  clumsily  but  with  tremendous 
force.  To  make  a  multitude  of  delicate  decisions  is  beyond  its  coarse 
powers.  It  can't  play  the  tune  it  has  in  mind  upon  our  complicated  polit- 
ical instrument ;  but  give  it  a  keyboard  simple  enough  for  its  huge  slow 
hands,  and  it  will  thump  out  the  right  notes  with  precision ! 

I'here  is  nothing  the  matter  with  Americans.  We  are  by  far  the  most 
intelligent  electorate  in  the  world.  We  are  not  indifferent.  We  do  want  good 
government.  And  we  can  win  back  our  final  freedom  on  a  short-ballot  basis ! 

NOMINATIONS    BY   DIRECT  VOTE   OF  THE  PEOPLE  ^ 
By  Governor  La  Follette 

Every  established  practice  and  custom  which  tends  to  impair  in  any 
degree  the  citizen's  right  of  suffrage  subverts  the  principles  of  represent- 
ative government  and  undermines  the  foundations  of  democracy.  Scarcely 
a  score  of  years  has  passed  since  the  sacredness  of  the  ballot  was  made 
a  prominent  issue  in  national  campaigns,  and,  doubtless  as  a  result,  there 
followed  much  of  the  legislation  which  effectively  guards  the  casting  and 
counting  of  the  ballot  in  the  general  elections. 

It  is  a  plain  proposition  that  the  right  of  suffrage  is  much  broader  and 
more  comprehensive  than  the  mere  physical  act  of  casting  the  ballot  with- 
out interference,  and  having  it  returned,  as  cast,  without  fraud.  All  of 
the  guarantees  of  the  constitution,  all  of  the  acts  of  legislation,  are 
designed  to  secure  and  record  the  will  of  the  citizen ;  to  make  it  certain 
that,  untrammeled  and  uninterrupted,  the  influence  of  his  judgment  may 
be  felt  in  matters  pertaining  to  government.  If  this  be  the  real  substance 
of  the  right  of  suffrage,  then  it  becomes  an  equally  sacred  obligation  on 
the  part  of  the  lawmaking  power  to  so  safeguard  every  step  and  proceed- 
ing which  constitutes  any  element  of  the  right  of  suffrage  that  the  citizen 
shall  be  protected  with  respect  to  it. 

When  the  voter  enters  the  election  booth  to  exercise  that  right,  he  finds 
prepared  for  him  an  official  ballot  upon  which  is  printed  the  candidates 
of  each  party  for  the  offices  to  be  filled  at  that  election.  This  is  the  first 
point  at  which  the  citizen  comes  in  contact  with  the  perfect  system  of 
laws  governing  general  elections.  From  the  moment  he  enters  the  booth 
until  the  ballot  which  he  casts  therein  is  counted  and  returned,  he  can  find 
no  cause  for  complaint. 

1  From  a  message  to  the  Wisconsin  legislature,  January,  1903. 


o 


84  AMERICAN  STATE  GOVERNMENT 


But  there  are  important  proceedings,  vitally  essential  to  the  right  of 
suffrage,  which  are  foundational  not  only  to  manhood  suffrage  but  to  the 
whole  structure  of  government  itself.  What  transpires  back  of  the  moment 
when  the  voter  receives  his  official  ballot  must  be  as  strongly  fortified 
and  as  sacredly  guarded  as  that  which  follows  in  the  consummation  of 
this  right  after  he  receives  the  official  ballot.  In  other  words,  the  act  of 
suffrage  consists  not  only  in  the  voting  and  counting  of  the  ballot,  but  in 
every  step  and  every  proceeding  which  is  in  any  way  connected  with  or 
involved  in  the  preparation  of  that  ballot  before  it  comes  to  the  hand  of 
the  voter. 

If  by  bad  practices  and  bad  laws  all  the  proceedings  which  control  in 
the  making  of  the  ballot  to  be  voted  are  taken  out  of  the  hands  of  the 
voter,  his  right  of  suffrage  is  not  only  impaired  but  he  has  been  deprived 
of  it.  The  voting  of  a  ticket  at  the  general  election,  in  the  making  of 
which  he  has  had  no  voice,  robs  him  of  his  voice  in  the  election.  He  has 
simply  been  an  instrument  in  the  hands  of  those  who  prepared  the  ballot, 
in  casting  which  he  records  not  his  will  but  their  will. 

The  preparation  of  the  ballot  and  the  placing  thereon  of  the  names  of 
the  candidates  of  the  respective  parties  is  therefore  not  a  matter  of  sec- 
ondary but  a  matter  of  primary  importance  to  the  exercise  of  the  right 
of  suffrage.  It  is  a  matter  of  supreme  importance  to  the  establishment 
of  good  government  and  to  the  protection  of  the  basic  principles  of 
democracy. 

The  right  of  suffrage  then  may  be  divided  into  two  separate  and  distinct 
transactions,  each  necessary  as  a  complement  to  the  other :  first,  all  of 
the  proceedings,  acts,  and  measures  necessary  to  insure  to  each  citizen 
the  right  to  vote  directly,  under  the  sanction  of  a  law  which  shall  protect 
him  from  interference,  in  the  selection  of  the  men  as  the  candidates  of 
his  party  to  be  voted  for  at  the  general  election ;  second,  all  of  the  pro- 
ceedings so  well  provided  for  at  the  present  time  by  statutes  governing 
the  general  elections. 

The  first  step  in  suffrage  is  exercised  in  the  selection  or  nomination  of 
the  candidates  of  each  party.  The  second  step  in  suffrage  is  exercised  in 
the  election  of  the  candidate  to  office.  Any  interference  with  the  citizen 
in  the  exercise  of  his  prerogative  in  either  case  is  equally  destructive  to 
his  right/)f  suffrage. 

It  is  no  longer  open  to  dispute  that  the  nomination  of  candidates  for 
office  has  in  a  very  large  measure  passed  out  of  the  hands  of  the  citizen. 
For  many  years  it  has  been  popular,  with  certain  theoretical  writers  upon 
the  subject,  to  place  the  responsibility  for  this  entirely  upon  the  citizen 
himself,  and  to  charge  him  with  dereliction  of  duty  and  want  of  interest 
in  public  affairs,  absorption  in  business  interests  and  pursuit  of  fortune 
being  assigned  as  primary  causes  of  neglect  of  these  elementary  duties  of 
citizenship.  P.ut  it  is  fair  to  say  that  the  citizen  always  has  manifested 
the  same  willingness  to  participate  in  the  affairs  of  government,  to  perform 


ELECTIONS  AND  NOMINATIONS  385 

his  duties  in  the  elections,  to  serve  in  the  rank  and  file  of  his  party  in 
the  campaigns,  that  he  has  to  defend  his  country  in  the  field  when  the 
sterner  duties  of  war  summoned  him  in  its  defense.  A  close  study  of 
the  history  of  caucuses  and  conventions  will  convince  any  unbiased  mind, 
in  search  for  truth,  that  the  voter  has  been  gradually  eliminated  as  a 
factor,  after  long,  patient  trial,  because  the  delegate  system  has  utterly 
failed  to  represent  him  or  to  reflect  his  opinion  in  its  results. 

Through  the  succession  of  generations  human  nature  is  the  same,  and 
when  De  Tocqueville  declared  that  "  the  most  powerful,  and  perhaps  the 
only,  means  of  interesting  men  in  the  welfare  of  the  country  is  to  make 
them  partakers  in  the  government,"  he  uttered  a  truth  which  applies  quite 
as  forcibly  to  the  primary  step  in  suffrage  as  to  the  secondary  step  in 
suffrage,  —  to  the  nomination  of  candidates  as  to  their  election  after 
nomination.  And  the  interest  and  influence  of  the  voter  can  be  as  well 
and  as  certainly  secured  in  the  one  as  in  the  other,  if  the  same  means  are 
taken  to  guarantee  to  him  the  same  certainty  of  result  respecting  the  one 
as  the  other. 

No  man  enjoys  being  made  a  puppet  of,  and  to  rally  to  the  caucus  only 
to  have  his  effort  defeated  by  a  well-organized  and  well-disciplined  minor- 
ity, or,  if  delegates  are  chosen  who  seem  to  reflect  the  will  of  the 
majority  in  the  caucus,  to  discover  later  that,  through  the  complicated 
system  of  delegating  and  redelegating  their  authority,  the  nominations 
finally  made  are  the  result  of  the  dickers  and  deals  and  combinations  and 
commercial  transactions  which  rule  modern  conventions.  It  would  be 
strange,  indeed,  if  the  citizen  should  continue  to  be  interested  in  the  pro- 
ceedings of  a  system  productive  of  such  results.  Abolish  the  laws  which 
now  make  elections  an  honest  reflection  of  the  will  of  the  voter  and  intro- 
duce the  same  elements  of  uncertainty  and  fraud  which  are  an  inherent 
part  of  nominations  through  convention  delegates,  and  the  interest  of  the 
citizen  in  the  general  election  would  fail  as  certainly  as  it  has  failed  in 
the  preliminary. 

It  is  not  enough  to  say  that  the  voter  has  his  opportunity  to  attend 
upon  the  caucus  and  express  his  choice  as  to  delegates.  This  is  to  offer 
the  form  of  the  thing  for  the  substance.  If  the  voter,  time  after  time, 
casts  his  ballot  and  elects  the  delegates  of  his  choice,  only  to  discover  in 
the  end  that  he  has  been  in  some  way  betrayed,  and  the  decision  of  the 
majority  in  fact  reversed,  it  is  inevitable  that  he  should  as  a  serious- 
minded  citizen  refuse  further  to  participate  in  the  farcial  proceedings.  It 
is  this  that  has  driven  the  majority  of  the  voters  from  the  caucus  until  it 
is  only  in  times  of  profound  public  concern  and  intense  public  feeling 
that  even  a  respectable  minority  of  the  voters  are  represented  in  the 
caucus  and  convention  system.  The  largest  attendance  upon  caucuses 
in  the  histor\'  of  political  contests  in  Wisconsin  resulted  in  polling  less 
than  40  per  cent  of  those  entitled  to  vote,  and  in  many  counties  as  much 
as  90  per  cent  of  the  party  vote  failed  to  appear  in  the  returns. 


386  AMERICAN  STATE  GOVERNMENT 

Public  interests  are  certain  to  fare  badly  when  there  exist  conditions, 
either  as  the  result  of  legislation  or  for  want  of  it,  which  eliminate  from 
participation  in  government  a  majority  of  the  citizens  in  a  democracy. 
The  evil  consequences  sure  to  follow  from  such  a  situation  are  twofold, 
—  in  the  effect  upon  the  citizen  and  the  effect  upon  the  public  official. 

If  the  caucus  and  convention  system  operates  to  exclude  a  majority 
of  the  voters  from  taking  part  in  making  the  nomination,  it  abridges  the 
right  of  suffrage,  it  weakens  the  voter's  interest  and  affection  for  the  state, 
'  it  instills  apprehension  and  suspicion  with  respect  to  that  government 
which  the  citizen  comes  more  and  more  to  feel  is  not  his  government, 
and  deprives  the  state  of  that  loyalty  and  devotion  which  is  nourished  in 
unification  of  interests  born  out  of  the  largest  measure  of  direct  personal 
participation  possible  in  a  representative  democracy.  This  is  but  another 
way  of  saying  that  the  basic  principle  of  democracy  is  personal  respon- 
sibility ;  that  there  can  be  no  personal  responsibility  unless  the  voters  are 
"  partakers  in  the  government." 

Compelling  the  citizen  to  hand  his  sovereign  right,  —  to  vote  directly  for 
the  candidates  of  his  choice,  —  over  to  some  caucus  delegate,  to  be  turned 
over  to  some  convention  delegate  to  barter  for  something  for  himself, 
impairs  the  voter's  right  of  suffrage,  and  its  evil  effects  in  representative 
government  are  more  strikingly  manifest  in  the  actions  of  the  public  offi- 
cial than  of  the  private  citizen. 

The  official  well  understands  that  his  nomination  through  convention 
delegates  invariably  is  secured  without  the  consent  of  a  majority  of  the 
voters  of  his  party,  or,  indeed,  without  the  consent  of  even  a  fair  minority 
of  his  party.  He  well  knows  the  value  of  the  powerful  influence  of  public- 
service  corporations  through  the  caucus  and  convention,  and  this  knowl- 
edge bears  strongly  upon  his  official  action.  He  reasons  that  under 
ordinary  circumstances  the  unlimited  use  of  money,  the  support  of  pur- 
chasable newspapers,  the  maintenance  of  perfect  organization,  all  attain- 
able through  the  vast  resources  of  such  corporations,  will,  under  ordinary 
circumstances,  enable  him  to  succeed  in  politics. 

No  man  can  have  witnessed  the  protracted  struggle  in  this  state  to 
secure  legislation  equalizing  the  burdens  of  taxation,  no  man  can  have 
witnessed  the  defeat  of  bills  increasing  the  taxation  of  the  railroads  to 
more  nearly  their  justly  proportionate  share,  and  escape  the  conviction 
that  the  present  method  of  selecting  candidates  for  office  is  radically 
defective.  It  cannot  be  seriously  doubted  that  under  a  system  of  nomi- 
nations by  direct  vote  of  the  people,  their  influence  upon  the  official  could 
not  fail  to  be  very  much  more  pronounced  and  direct.  He  would  well 
understand  that  in  order  to  secure  their  approval  and  support  to  continue 
him  in  public  life,  he  must  win  that  approval  upon  the  merit  of  his  record 
in  their  service.  He  would  know  that  every  vote  cast,  every  act  as  a 
representative  in  aid  of  measures  or  opposed  to  measures  affecting  the 
public  interest,  would  be  canvassed  and  reviewed  when  he  came  to  seek 


ELECTIONS  AND  NOMINATIONS  387 

renomination ;  hence  his  record  as  a  public  official  would  be  made  day 
by  day  with  that  sense  of  personal  responsibility,  arising  from  a  knowl- 
edge of  direct  and  certain  accountability  to  the  people,  pointing  the  way 
he  should  go. 

This  is  the  one  thing  needful  in  a  republican  form  of  government,  and 
the  one  thing  which  cannot  be  dispensed  with  in  any  of  the  affairs  of  life 
where  one  man  performs  services  for  another.  No  trust  would  be  safe 
unless  the  trustee  knew  that  he  would  be  required  to  render  an  account 
of  his  stewardship  to  one  having  authority  to  terminate  it.  In  no  other 
trust  positions  are  the  opportunities  for  evading  responsibility  so  many 
or  the  temptations  for  betrayal  so  great  and  the  likelihood  of  confusing 
and  befogging  the  issue  so  favorable  as  in  the  public  sendee.  Hence  it 
is  imperative  that  the  trustee  be  required  to  account  directly  to  those 
whom  he  represents  in  the  discharge  of  his  trust. 

This  is  the  fatal  defect  in  the  caucus  and  convention  system  of  select- 
ing candidates  to  be  elected  to  office.  Even  if  men  chosen  as  delegates 
in  the  caucuses  and  conventions  were  never  guilty  of  a  willful  and  cor- 
rupt betrayal  of  trust,  if  bargains  and  deals  and  bribery  could  be  elimi- 
nated, nevertheless  the  entire  plan  should  be  abolished  because  it  removes 
the  nomination  too  far  from  the  voter,  the  trustee  too  far  from  him  for 
whom  he  bears  the  trust,  the  agent  too  far  from  the  principal.  Every 
transfer  of  delegated  power  weakens  authority  and  diminishes  responsi- 
bility, until  the  candidate  nominated  represents  nothing  that  the  voter 
wanted,  feels  under  no  obligation  to  the  voter  for  his  nomination,  nor  is 
he  directly  accountable  to  him  for  his  acts  as  a  public  official. 

The  momentous  importance  of  discarding  the  delegate  system  and 
securing  the  personal  responsibility  of  the  official  to  the  citizen  is  rapidly 
coming  to  be  accepted  through  the  country.  Already  legislation  recog- 
nizing the  principle  of  nominating  by  direct  vote  of  the  people  has  been 
applied  in  making  nominations  in  a  dozen  different  states,  while  the  legis- 
latures of  twenty -two  others  have  taken  hold  of  the  subject  in  an  earnest 
way  within  the  last  two  years.  The  demand  for  direct  nominations  was 
recognized  in  the  platforms  of  both  political  parties  in  several  states  in 
the  recent  campaign,  and  the  progressive  movement  is  commanding 
strong  support  throughout  the  country. 

To  secure  a  more  direct  expression  of  the  will  of  the  people  in  all  things 
pertaining  to  the  people's  government  is  the  dominating  thought  in  Amer- 
ican politics  to-da3\  The  citizen  will  no  longer  surrender  to  delegate, 
agent,  or  substitute,  any  political  control  which  he  may  properly  exercise 
for  himself.  He  understands  that  in  some  matters  pertaining  to  govern- 
ment he  must  be  represented  by  a  public  servant.  The  citizen  is  resolved 
to  participate  directly  wherever  he  can,  and  in  all  matters  where  he  must 
be  represented  by  another,  to  bring  that  representative  as  near  to  him  as 
possil3le.  The  fundamental  principle  upon  which  this  government  was 
established  can  no  longer  be  subverted.    No  more  striking  manifestation 


388  AMERICAN  STATE  GOVERNMENT 

of  this  could  be  found  than  in  the  current  volume  of  the  Congressional 
Record.  For  the  first  time  in  history  the  House  of  Representatives 
passed,  without  one  dissenting  vote,  and  sent  to  the  Senate  a  resolution 
for  the  election  of  United  States  senators  by  direct  vote.  The  spirit  of 
democracy  is  abroad  in  the  land.  Government  is  to  be  brought  back  to 
the  people. 

The  nomination  of  all  candidates  by  direct  vote  under  the  Australian 
ballot  should  appeal  to  the  patriotism  of  all  legislators  and  lift  them  above 
partisan  and  personal  prejudice,  in  a  united  effort  to  give  the  people  of 
Wisconsin  a  system  of  electing  public  officials  truly  representative  of  public 
interests  ;  in  restoring  to  the  people  in  full  measure  this  principle  of  pure 
democratic  government.  This  is  required  particularly  of  Republicans,  by 
every  obligation  which  can  be  made  binding  upon  the  honor  of  the  rep- 
resentatives of  any  political  party  in  the  public  service. 

Since  the  adoption  of  the  federal  Constitution  government  in  this 
country  has  been  through  the  agency  of  some  political  party.  Political 
parties  are  not  organized  or  maintained  upon  the  personality  or  strength 
of  individuals,  but  around  certain  deep-seated  ideas  which  lay  hold  of  the 
convictions  of  men.  These  ideas  when  formulated  and  proclaimed  be- 
come the  party's  declaration  of  principles,  its  promise  to  perform.  This 
declaration  of  principles,  this  promise  to  perform,  is  of  the  highest  impor- 
tance to  each  citizen.  When  so  proclaimed  it  enables  him  to  determine 
his  party  affiliation.  He  well  understands  that  one  political  party  or 
another  will  control  government,  will  make  and  administer  the  laws. 
Hence  he  gives  his  support  to  that  party  which-promises  to  do  the  specific 
things  that  he  regards  of  the  highest  importance  to  the  state  and  to  the 
welfare  of  every  citizen.  The  party  promise,  therefore,  is  a  covenant 
with  the  voter  upon  which  he  has  staked  his  faith  and  his  interests.  He 
has  given  his  support,  he  has  invested  the  party  with  his  authority,  he 
has  made  it  possible  for  the  party  to  control  in  government.  Upon  its 
promise  and  his  support  the  party  has  become  the  custodian  of  his  polit- 
ical rights  as  a  citizen,  of  his  property  right  as  a  man. 

But  the  party  obligation  goes  still  further.  The  obligation  of  the  party 
is  made  the  more  binding  because  it  has  sought  out  the  citizen,  urged 
acceptance  of  its  pledges,  pressed  them  upon  his  consideration,  pro- 
claimed again  and  again  its  purpose  to  keep  them  in  letter  and  spirit.  It 
has  made  the  citizen  its  solicitor  and  secured  his  good  offices  to  repeat 
its  promises,  proclaim  its  principles,  and  enlist  in  its  ranks  his  neighbors 
and  friends.  Having  received  his  vote,  his  influence,  his  devotion,  the 
party  is  bound  to  keep  its  pledged  word.  This  is  its  title  to  confidence. 
This  measures  its  value  as  a  power  for  good  in  representative  gov- 
ernment. 

The  party  itself  will  not  fail.  Men  in  masses  are  not  drawn  together 
in  support  of  princii^Ies  which  endure  the  strain  of  protracted  contest, 
without  fixed  convictions.    'i"hr  parly  is  the  aggregation  of  citizens  bound 


ELECTIONS  AND  NOMINATIONS  389 

together  by  an  agreement  of  opinion  respecting  the  declared  principles 
of  the  party.  They  are  for  maintaining  the  principles  and  keeping  faith 
with  one  another.  Fixed  convictions  are  the  foundations  of  good  faith. 
The  party  honor  is  safe  with  the  party.    It  will  not  betray  itself. 

But  the  party  must  select  men  as  its  medium  of  expression  in  govern- 
ment from  the  members  of  its  organization  and  make  them  public  officials 
to  execute  the  will  of  the  majority.  Upon  the  public  official  then  there 
falls  the  full  weight  of  this  double  obligation.  He  represents  the  indi- 
vidual citizen  in  person.  He  is  the  custodian  of  the  party  honor.  He 
cannot  play  fast  and  loose  with  clearly  understood  personal  and  party 
obligations  and  maintain  a  semblance  of  official  integrity.  He  has  no 
more  moral  right  to  quibble  and  evade,  to  say  that  he  will  perform  a 
part  and  repudiate  some  of  the  specific  promises  of  the  party,  than  he 
would  have  to  use  in  part  trust  funds  committed  to  his  keeping.  If  this 
be  counted  too  exact  a  standard  of  public  duty  to-day,  be  sure  that  it  will 
not  be  so  regarded  to-morrow.  The  citizen  is  being  rapidly  schooled  by 
experience  throughout  the  entire  country,  and  is  fast  acquiring  definite 
ideas  of  the  right  relation  of  the  political  party  to  government,  of  the 
citizen  to  his  political  party,  and  the  duty  of  the  public  official  to  the  citi- 
zen, to  his  party,  and  to  the  state. 

If  government  in  Wisconsin  is  representative,  then  the  people  of  the 
state  have  pointed  the  way  for  us  with  reference  to  the  enactment  of  a 
law  for  the  nomination  of  all  candidates  by  direct  vote,  as  well  as  the 
enactment  of  law  that  shall  equalize  the  burdens  of  taxation.  No  ques- 
tion has  been  more  thoroughly  presented  and  more  intelligently  passed 
upon  in  any  form  of  government.  For  years  it  had  been  discussed  from 
the  platform  and  in  the  press  of  the  state,  until  it  became  thoroughly  well 
understood  in  every  community  and  every  household.  It  was  made  the 
subject  of  emphatic  declarations  in  the  platforms  of  both  parties  in  this 
state  as  early  as  1898,  the  Democratic  convention  declaring  in  unequivocal 
terms  for  the  nomination  of  all  candidates  by  direct  vote  ;  the  Republican 
convention  declaring  for  legislation  which  should  give  the  citizen  a  more 
direct  expression  of  his  will  in  the  nomination  of  candidates  for  office. 

Not  a  vote,  however,  was  cast  in  the  legislature  of  1899  for  the  enact- 
ment of  a  law  giving  the  people  the  opportunity  to  select  their  candidates 
by  direct  vote. 

The  discussion  of  this  subject,  so  deeply  interesting  to  the  voters  of 
Wisconsin,  continued,  and  the  convention  of  the  majority  party  in  1900 
unanimously  adopted  a  platform  declaring  for  the  nomination  of  all  can- 
didates by  direct  vote  upon  the  same  day  under  the  Australian  ballot. 
Professing  a  want  of  confidence  in  the  reliability  of  the  declarations  made 
in  a  convention,  expressing  doubt  whether  such  a  declaration  registered 
the  actual  will  of  the  voters  represented  in  the  convention,  fearful  lest 
the  demand  as  recorded  was  in  fact  only  a  recommendation,  and  the 
recommendation  in  truth  the  result  of  misunderstanding,  it  was  deemed 


390  AMERICAN  STATE  GOVERNMENT 

justifiable  to  refer  the  entire  subject  again  to  the  people  of  the  state  and 
once  more  ask  them  to  proclaim  their  will. 

Since  then  every  phase  of  the  question  has  been  under  consideration, 
every  objection  has  been  urged  with  all  the  force  and  insistence  which  per- 
fect organization  and  unlimited  resource  could  furnish  through  newspapers, 
pamphlets,  letters,  and  personal  appeals,  and  yet  the  voters  of  the  majority 
party,  speaking  their  will  through  the  only  medium  provided,  declared 
by  platform  resolutions  their  demand  for  the  nomination  of  all  their 
candidates  by  direct  vote,  and  ratified  that  demand  by  overwhelming 
majorities  in  the  late  election.  Imperfect  though  the  caucus  and  conven- 
tion be  as  a  medium  for  registering  the  wishes  of  the  voter,  we  come  to 
the  determination  of  this  question  with  no  opportunity  to  put  aside  the 
responsibility  placed  upon  us  by  the  unmistakable  commands  of  those 
who  have  commissioned  us  to  represent  them  in  public  office.  Upon  every 
phase  of  the  question  concerning  which  the  people  have  spoken,  if  we 
recognize  the  principle  upon  which  our  government  is  founded,  we  have 
no  discretion.  With  respect  to  every  question  not  passed  upon  by  the 
people,  we  are  authorized  to  exercise  our  best  judgment  in  representing 
their  interests ;  but  when  it  has  been  proclaimed  and  proclaimed  again, 
so  that  there  can  be  no  possibility  of  doubt  respecting  their  desire,  to 
ignore  it,  or  to  refuse  to  execute  the  expressed  will  of  the  majority  legally 
recorded,  is  to  violate  and  trample  under  foot  every  principle  of  govern- 
ment which  makes  the  perpetuity  of  representative  democracy  at  all 
possible. 

I  submit,  therefore,  that  it  is  not  for  us  to  determine  what  shall  be  the 
scope  of  a  law  to  nominate  candidates  by  direct  vote.  This  has  been 
settled  by  the  people  of  Wisconsin,  to  whom  the  matter  has  been  referred 
and  referred  again.  They  have  determined  that  "  all  candidates  for  state, 
legislative,  congressional,  and  county  ofiicers  shall  be  nominated  at  a 
primary  election  upon  the  same  day  by  direct  vote  under  the  Australian 
ballot." 

The  voters  of  Wisconsin  are  an  intelligent,  thoughtful  body  of  men. 
They  are  entirely  capable  of  passing  upon  the  question  and  deciding  for 
themselves  whether  they  desire  the  nomination  of  all  or  only  a  part  of  their 
candidates  by  direct  vote  without  the  intervention  or  interference  of  any 
delegates  or  conventions.  They  understand  that  if  there  is  any  reason 
for  their  taking  charge  of  the  nomination  of  their  own  candidates  for 
office,  that  those  reasons  apply  equally  well  to  their  taking  charge  of  the 
nomination  of  all  their  candidates  for  office.  They  undcistand  that  this 
is  particularly  true  of  those  candidates  which  have  to  do  with  the  making 
of  the  laws  and  with  the  execution  and  administration  of  tho.se  laws  when 
made.  They  realize  that  luider  our  system  tiie  ]5oint  where  government 
fails  is  always  the  point  of  attack  where  interests  are  conflicting. 

The  overbalancing  control  whicii  the  public-service  corporation  is  ex- 
erting in  government  to-day  does  not  affect  in  any  marked  degree  the 


ELECTIONS  AND  NOMINATIONS  391 

performance  of  official  duty  on  the  part  of  county  officers.  And  it  will 
reform  no  abuse  in  legislation,  insure  no  better  execution  of  the  laws  by 
those  charged  with  their  execution  and  administration,  to  provide  for  the 
nomination  of  county  officers  by  direct  vcJte  ;  but  the  influence  and  power 
of  such  corporations  is  dangerously  manifest  in  the  making  and  execu- 
tion of  the  laws,  and  in  the  defeat  of  legislation  affecting  the  interests  of 
the  state  and  the  individual  citizen  as  well. 

Out  of  these  existing  and  well-recognized  conditions  has  grown  the 
conviction,  gaining  in  strength  year  by  year  with  the  people  of  Wisconsin, 
that  the  nominations  of  senators  and  assemblymen,  of  state  officers  and 
members  of  Congress,  by  direct  vote  will  insure  a  government  where  the 
interests  of  the  corporations  and  the  citizens  will  stand  upon  a  footing  of 
absolute  equality. 

If  in  the  face  of  the  demand  which  has  come  from  the  people  of  this 
state  again  and  again  for  a  law  that  shall  provide  for  the  nomination  of 
all  candidates  by  direct  vote,  there  is  to  be  opposition,  it  will  come  from 
these  great  corporate  interests.  Whatever  form  it  may  take,  in  whatever 
guise  it  comes,  whatever  strength  it  may  manifest,  behind  it  will  be  the 
public-service  corporations  of  this  state.  Realizing  that  the  time  is  past 
when  this  legislation  can  be  wholly  defeated,  their  effort  may  be  directed 
to  limit,  in  so  far  as  may  be,  the  application  and  scope  of  the  legislation, 
impair  the  efficiency  of  the  law  as  passed,  and  preserve  as  much  of  the 
present  system  of  making  nominations  through  delegates  as  possible. 
Their  interests  are  best  subserved  through  the  caucus  and  convention, 
and  it  has  become  an  important  function  of  their  political  departments  to 
control  nominations  through  caucus  and  convention  delegates,  thus  secur- 
ing men  who  will,  when  elected,  serve  them  without  question.  Hence 
effort  may  be  made  to  carry  some  portion  of  the  present  bad  nominating 
system  past  the  present  session  of  the  legislature,  in  the  hope  that  so 
much  of  it  as  survives  this  biennial  term  may  be  indefinitely  perpetuated 
in  the  state. 

The  suggestion  of  such  a  proposition  to  a  legislature,  under  such 
specific  instructions  respecting  a  measure,  serves  to  illustrate  how  lightly 
those  who  make  it  regard  the  obligation  of  the  public  official,  when 
nominated  by  caucus  and  convention  delegates,  with  respect  to  the 
wishes  of  his  constituents,  or  the  promises  upon  which  he  was  elected 
to  serve  them.  If  such  an  attempt  were  to  succeed,  it  could  only 
intensify  the  feeling  and  strengthen  the  purpose  of  the  people  of  this 
commonwealth  to  sweep  from  the  statutes  the  last  vestige  of  caucus  and 
convention  legislation  through  which  men  can  secure  office  only  to 
repudiate  their  political  obligations  and  betray  those  who  trusted  them. 

If  such  a  course  should  be  urged  upon  this  legislature,  it  will  be  for 
some  measure  that  will  leave  the  executive  office  of  the  state  where 
it  may  be  within  possible  control  of  selfish  private  interests  through 
the  delegate  system  of  making  nominations.    The  other  state  officers 


392  AMERICAN   STATE  GOVERNMENT 

doubtless  would  be  joined  with  the  executive  in  such  a  proposition,  but 
it  would  be  merely  as  a  makeweight.  Whatever  the  purpose  assigned, 
domination  in  the  executive  office  would  be  the  real  underlying  object. 
Legislation  recently  enacted  in  this  state,  and  questions  of  great  public 
moment  already  pending,  vastly  increase  the  powers  and  responsibilities 
of  the  executive.  This  office  will  be  the  point  of  vantage  in  settling 
many  of  the  important  questions  of  taxation  and  the  regulation  of  rail- 
road rates  during  the  next  few  years  in  Wisconsin.  Through  the  execu- 
tive office  appointments  upon  the  Tax  Commission  will  be  made  from 
time  to  time,  as  terms  expire  and  vacancies  occur.  With  the  creation  of 
a  state  board  of  assessment  to  fix  the  value  of  the  property  of  railroads 
and  other  public-service  corporations,  the  selection  of  its  members  will 
be  made  through  the  executive  office,  in  whole  or  in  part.  Through  this 
office  will  be  appointed,  in  part  at  least,  members  of  that  supremely 
important  commission  to  regulate  transportation  rates  upon  the  railroads 
of  Wisconsin,  which,  I  trust,  the  legislature  will  provide  for  before  it 
adjourns. 

It  becomes  at  once  apparent,  therefore,  that  the  office  of  governor  is 
one  in  the  filling  of  which  special  interests,  and  especially  the  railroads, 
will  more  and  more  desire  to  exercise  an  influence  as  the  years  go  by. 
How  effectually  they  can,  in  any  ordinary  contest  for  the  gubernatorial 
nomination,  accomplish  this,  through  the  manipulation  of  convention 
delegates,  when  they  have  many  million  dollars  annually  at  stake, 
requires  no  argument  to  maintain.  How  utterly  impossible  for  them  to 
dictate  nominations  when  made  by  direct  vote  of  all  the  people  under 
the  Australian  ballot  is  demonstrated  in  the  utter  failure  to  control 
elections  by  the  use  of  money  since  the  adopti(Mi  of  the  Australian  ballot 
system  of  voting. 

It  thus  becomes  manifest  that  the  executive  should  be  nominated  by 
direct  vote  of  the  people.  To  limit  the  application  of  the  primary-election 
law  to  the  nomination  of  members  of  the  legislature  would  be  to  furnish 
the  people  a  lopsided  and  unbalanced  system.  It  would  nearly  always 
be  possible  for  the  executive,  nominated  by  a  system  independent  of  the 
will  of  the  voters,  to  stop  in  the  executive  office  any  measure  enacted 
by  the  representatives  of  the  peoj^le.  And  it  may  as  well  be  understood 
now  that  the  question  of  taxation  and  the  question  of  the  regulation  of 
transportation  rates,  involving,  as  it  does,  the  maintenance  of  commis- 
sions appointed  by  the  executive,  intrush-'d  w  ith  all  the  power  under  the 
law,  that  to  place  the  office  of  governor,  through  a  nominating  system, 
where  corporate  wealth  and  power  may  turn  the  balance,  would  jeo|jard- 
ize  or  set  at  naught  the  will  of  the  majority  on  every  question  and  on 
every  issue. 

'J'o  enact  the  will  of  the  people  into  statutory  law  requires  the  majority 
action  of  Senate  and  Assembly  and  the  a|)]M()val  of  the  governor.  What, 
then,  will  it  avail  if,  in  order  to  insure  better  government  for  the  ])c()ple. 


ELECTIONS  AND  NOMINATIONS  393 

they  are  accorded  direct  control  of  the  selection  of  their  candidates  in 
the  legislature  by  direct  vote  for  their  nomination,  and  are  compelled  to 
leave  the  nomination  of  the  chief  executive  of  the  state  to  a  system  in 
which  the  influence  of  the  public-service  corporation  is  known  to  be 
most  potent  ? 

The  same  principle  should  be  applied  in  congftssional  nominations. 
Members  of  Congress  directly  represent  the  people  upon  questions  of 
supreme  interest  to  them.  The  people  should  have  the  right  to  vote 
directly  for  or  against  them  in  making  nominations.  Upon  trusts,  tariff 
revision,  a  thorough  regulation  of  interstate  commerce  by  the  Interstate 
Commerce  Commission,  and  many  other  questions,  the  public  judgment 
throughout  the  country  is  taking  very  definite  form.  Under  a  system  of 
direct  nominations,  including  members  of  Congress,  national  legislation 
in  the  popular  branch  of  Congress  will  more  nearly  reflect  the  enlight- 
ened judgment  of  the  citizenship  of  this  country. 

These  observations  respecting  the  offices  to  be  embraced  in  a  primary- 
election  law  are  submitted  as  sufficient  in  reason  for  the  complete  and 
thoroughgoing  measure  which  it  is  assumed  by  the  people  of  our  com- 
monwealth you  will  enact  in  good  faith.  They  are  submitted  more  par- 
ticularly in  anticipation  of  efforts  that  will  be  made  by  the  representatives 
of  the  public-service  corporations  again  to  defeat  such  legislation,  or, 
failing  in  that,  to  except  from  its  provisions  such  officials  as  shall  in  the 
end  cause  its  purposes  wholly  to  miscarry.  Opposition  to  legislation 
takes  many  forms.  When  defeated  upon  the  main  proposition  it  is 
almost  certain  to  attempt  to  destroy  the  practical  application  of  the 
principle,  or  to  narrow  its  limitations,  discredit  its  operation,  and  insure 
its  repeal  as  a  failure.  But  the  representatives  of  any  interests  who 
would  subvert  the  sovereign  and  expressed  will  of  the  people  of  this 
state  for  the  nomination  of  all  candidates  by  direct  vote  must  wholly 
fail.  However  vigorous  and  sincere  has  been  the  opposition  of  members 
of  the  legislature  heretofore,  it  is  one  of  the  leading  attributes  of  Ameri- 
can character,  as  well  as  one  of  the  fundamental  principles  of  American 
institutions,  to  accept  the  will  of  the  majority  when  fairly  and  plainly 
expressed. 

Out  of  the  experience  of  the  last  two  years  there  has  come  to  all  men 
higher  ideals  in  public  life,  more  clearly  defined  official  obligation,  and 
the  promise  of  a  better  public  service.  Nothing  of  official  dignity  has 
been  lost.  The  representative,  'concerning  all  matters  upon  which  the 
citizen  has  not  acted  and  the  party  has  not  definitely  instructed  him, 
will  exercise  his  independent  judgment  in  the  discharge  of  his  public 
duty ;  but  he  will  show  an  increased  regard  for  the  will  of  the  people 
and  for  the  pledges  of  his  party  that  shall  invest  his  office  with  added 
respect  and  increased  honor.  So,  too,  shall  political  parties  be  strength- 
ened in  the  confidence  of  the  people  and  protect  and  fortify  the  principles 
of  representative  government. 


394  AMERICAN  STATE  GOVERNMENT 

The  scope  of  a  primar}'-election  law  having  been  determined  by  the 
people,  it  becomes  one  of  the  most  important  duties  which  will  devolve 
upon  the  legislature  so  to  formulate  the  promised  measure  as  to  carry 
out  in  letter  and  spirit  the  expressed  will  of  those  who  have  chosen  you 
to  represent  them.  This  I  am  confident  you  will  perform  in  the  utmost 
good  faith,  with  a  determination  to  place  upon  the  statutes  the  best  law 
for  the  nomination  of  all  candidates  by  direct  vote  which  it  is  possible 
to  write. 

Whatever  may  have  been  the  attitude  of  any  member  respecting  this 
legislation,  whatever  misgivings  he  may  have  entertained  touching  the 
wisdom  of  the  substitution  of  the  direct  system  of  making  nominations 
for  the  delegate  method,  he  may  now  feel  that  he  is  relieved  from  all 
responsibility  upon  that  question.  This  proposed  legislation  comes  to 
you  from  the  hands  of  the  people,  the  sovereign  authority  of  this  com- 
monwealth, after  repeated  adoption,  approval,  and  ratification,  with  all 
the  sanction  in  effect  which  a  specific  referendum  could  carry  with  it. 

We  are  therefore  in  a  fortunate  position  with  respect  to  all  past  differ- 
ences of  opinion  upon  this  subject,  and  can  now  join  in  discharging  the 
solemn  obligations  of  a  public  trust  more  clearly  defined  than  ever 
before  in  the  legislative  history  of  this  state.  We  can  unite  in  an  effort 
to  give  the  people  of  Wisconsin  the  most  perfect  statute  which  can  be 
framed  in  accordance  with  the  instructions  received  from  them. 

MAJORITY  NOMINATIONS^ 
By  Governor  La  Follette 

As  a  part  of  the  discussion  of  the  subject  of  primary  elections,  in  the 
first  message  presented  to  the  legislature,  January,  1901,  I  called  atten- 
tion to  the  objection  to  nominating  candidates  by  a  plurality  vote,  and 
suggested  that  provision  could  be  made  to  enable  the  voter  at  the  pri- 
mary to  indicate  upon  his  ballot  his  first  and  second  choice  of  the  candi- 
dates presented  for  each  office.  In  the  event  that  no  candidate  had 
received  a  majority  of  first-choice  votes,  then  the  second-choice  votes 
could  be  counted,  resulting  in  a  nomination  by  majority  vote. 

This  suggestion  was  repeated  to  your  honorable  body  in  the  aimual 
message  in  January  of  the  present  year,  and  your  best  thought  invoked 
upon  the  perfection  of  the  primary-election  law. 

Since  that  time  the  statute  has  been  given  a  trial.  In  the  municipal 
elections  in  1905  it  was  tested  for  the  first  time.  The  practical  trial  of  the 
law  resulted  in  its  general  approval  throughout  the  state.  The  conten- 
tion made  for  it  by  those  who  had  advocated  its  adoption  was  justified. 
Unbiased  judgment  everywhere  approved  the  new  method  of  making  nom- 
inations by  direct  vote.    But  the  final  test  of  every  law  is  its  execution. 

1  From  a  message  to  the  Wisconsin  legislature,  1905, 


ELECTIONS  AND  NOMINATIONS  395 

Whatever  of  honest  criticism  came  out  of  the  administration  of  the  new- 
statute  in  the  municipal  elections  was  directed  against  that  provision  of 
the  law  which  admits  of  plurality  nominations.  It  is  to  this  section  of  the 
statute  that  we  should  apply  our  best  effort  for  correction.  It  is  here 
that  the  enemies  of  popular  government  will  direct  their  attack.  It  is  at 
this  point  that  an  attempt  will  be  made  to  take  from  the  people  this  fun- 
damental right  of  self-government  which  is  involved  in  choosing  their  own 
candidates  for  the  public  service.  This  will  not  be  done  openly  by  an 
effort  to  repeal  the  law.  It  will  be  attempted  indirectly,  using  it  as  the 
pretext  to  return  to  the  delegate  system  of  making  nominations.  Fealty 
to  majority  control  in  a  democracy  is  very  intense,  and  it  will  be  urged 
that  majority  nominations  can  only  be  secured  through  nominations  by 
delegates  in  a  convention.  Asserting  that  minority  nominations  are  un- 
American,  the  attack  will  be  prosecuted  under  the  guise  of  preserving 
the  majority  principle  in  government. 

Whether  there  is  foundation  for  the  assertion  that  an  attempt  is  to  be 
made  to  break  down  the  principle  of  nominations  by  direct  vote  of  the 
people  will  appear  when  this  legislature  makes  the  effort  further  to 
perfect  the  law. 

Whatever  opposition  there  was  to  its  enactment,  every  principle  upon 
which  our  government  rests,  demands  that  the  law  should  now  be  given 
a  fair  trial.  This,  every  man  of  intelligence  knows,  carries  with  it  the 
right  to  make  such  change  as  experiences  shall  require.  The  law  of  1899, 
creating  the  Tax  Commission,  has  required  amendment  at  every  session 
since.  The  law  of  1905,  establishing  a  railway  commission,  will  require 
amendment  at  this  session,  and  probably  further  change  will  be  found 
necessary  at  the  next  session. 

The  people  of  Wisconsin,  after  years  of  discussion  and  deliberation, 
declared  in  1900  for  the  abolition  of  delegate  and  convention  nomina- 
tions and  for  the  nomination  of  all  candidates  by  direct  vote  at  a  primary 
election.  The  legislation  was  defeated.  Again  in  1902  they  recorded 
their  decree  strongly  in  favor  of  nominations  by  direct  vote,  and  again 
they  were  denied  by  the  legislature.  Finally,  in  1904,  for  the  third  time 
they  voted  overwhelmingly  for  the  right  to  make  their  own  nominations 
by  direct  vote.  I  submit,  therefore,  that  the  people  of  Wisconsin  are 
entitled  to  the  best  efforts  of  this  and  succeeding  legislatures,  earnestly 
and  honestly  directed,  so  to  perfect  the  law  as  to  preserve  inviolate 
the  principle  of  making  all  nominations  by  direct  vote,  without  the 
intervention  of  delegates,  conventions,  or  any  other  agency  or  political 
device. 

It  is  but  just  to  remind  critics  in  this  connection  that  no  protest  has 
ever  been  heard  against  the  election  of  public  officials  by  a  plurality  vote. 
Yet  at  every  general  election  men  are  chosen  by  plurality  vote  to  make 
and  administer  the  laws  under  which  we  live.  This  has  never  been  re- 
garded as  offering  any  reason  for  an  attack  upon  our  general-election 


396  AMERICAN  STATE  GOVERNMENT 

laws,  or  as  an  assault  upon  the  principle  of  democracy  upon  which  our 
government  rests. 

Nevertheless,  if  the  principle  of  majority  control  can  be  applied  in 
making  nominations  by  direct  vote  at  a  primar)'  election,  every  man  in 
this  commonwealth  will  agree  that  it  should  be  done.  I  believe  that 
majority  nominations  can  be  more  easily  and  certainly  secured  by  direct 
vote  of  the  people  than  at  the  hands  of  any  delegate  convention,  it 
matters  not  how  the  delegates  be  chosen  or  how  they  be  limited  in  their 
support  of  candidates. 

Let  us  give  to  this  important  question  the  greatest  care,  for  we  may 
be  assured  that  it  is  worthy  our  most  serious  consideration.  The  record 
of  \\'isconsin  is  a  study  for  every  state  in  the  Union. 

It  will  be  urged  by  those  who  would  break  down  the  principle  of  nom- 
inations by  direct  vote  of  the  citizen,  that,  since  the  primary-election  law 
permits  plurality  nominations,  it  should  be  so  changed  as  to  provide  for 
the  election  of  delegates  to  conventions,  and  that  delegates  so  elected 
should  make  nomination  in  every  case  where  a  candidate  fails  to  get  a 
majority  vote  under  the  primary  election.  This  would  mean  in  the  end 
the  nomination  of  practically  all  candidates  by  delegates  rather  than  by 
direct  vote  of  the  people.  It  would  easily  be  in  the  power  of  any  politi- 
cal organization  to  put  up  several  candidates  for  each  office  and  so  divide 
the  vote  as  to  deprive  any  candidate  of  a  majority.  Neither  would  any 
protection  be  afforded  by  limiting  the  candidates  to  be  voted  for  in  the 
convention  to  those  who  were  highest  on  the  ticket  at  the  primar)^  election. 
There  would  still  be  the  same  opportunity  to  manipulate  delegates  and 
thwart  the  will  of  the  people  by  corruption.  The  moment  the  important 
business  of  choosing  candidates  is  taken  out  of  the  hands  of  the  people 
and  turned  over  to  delegates  or  agents,  that  moment  the  mischief  is  done. 
The  door  is  open  for  deals  and  dickers  and  fraud.  Under  this  method  the 
people  will  again  lose  their  control.  They  can  never  regain  it.  Control 
lost  in  making  the  nominations  is  the  loss  of  control  in  government. 

Precisely  this  plan  for  defeating  nominations  by  direct  vote  and  hand- 
ing the  entire  business  over  to  delegates  was  resorted  to  in  at  least  one 
state  legislature  by  the  political  machine  last  year.  A  strong  popular 
movement  is  on  in  that  state  at  the  present  time  to  abolish  the  election  of 
delegates  and  the  holding  of  conventions,  and  to  nominate  all  candidates 
by  direct  vote. 

The  advocates  for  nominations  by  delegates  claim  too  much.  A  little 
reflection  upon  the  subject  will  convince  any  one  that  in  every  case 
where  a  candidate  is  strong  enough  to  secure  a  majority  of  the  votes  of 
the  delegates  in  a  convention,  he  would  receive  a  majority  of  the  votes 
in  a  primary  election.  With  the  same  number  of  candidates  among  whom 
the  votes  are  divided,  there  would  be  the  same  failure  to  secure  a  majority 
on  the  part  of  any  one  of  them  upon  the  first  ballot  in  a  convention  that 
would  occur  in  a  primary  election. 


ELECTIONS  AND  NOMINATIONS  397 

A  majority  nomination  in  a  convention  where  the  vote  is  so  divided 
among  the  several  candidates  that  neither  has  a  majority  upon  the  first 
ballot  can  be  brought  about  only  by  delegates  subsequently  changing 
their  votes  and  throwing  them  to  some  other  candidate  than  the  one  the 
voters  elected  them  to  support.  Such  a  change  on  the  part  of  the  dele- 
gate defeats  the  will  of  the  voter  as  expressed  in  the  election  of  the 
delegate.  The  majority  nomination  accomplished  by  it  is  a  majority  nom- 
ination determined  by  delegates  and  expresses  their  choice.  It  is  not  a 
majority  nomination  made  by  the  voter  either  directly  or  indirectly.  The 
man  nominated  by  the  delegate  may  be  the  very  one  whom  the  voter, 
electing  the  delegate,  would  under  no  circumstances  have  chosen.  In 
other  words,  if  the  delegates  are  at  liberty  to  vote  as  they  please,  then 
the  result  is  one  in  the  control  of  which  the  voters  back  of  the  delegates 
have  had  no  voice.  This  shifting  of  the  votes  of  delegates  from  one 
candidate  to  another,  through  which  a  majority  nomination  is  finally 
secured,  occurs  under  all  the  circumstances  and  conditions  which  have 
discredited  the  work  in  nominating  conventions  in  every  state. 

If  majority  nominations  can  be  secured  by  direct  vote  of  the  people 
in  a  primary,  it  must  be  conceded  that  it  would  be  preferable  to  trans- 
ferring this  important  business  to  delegates.  That  this  can  be  easily 
attained  is  very  apparent  upon  examination.  We  have  but  to  turn  to  the 
country  from  which  we  took  the  Australian  ballot,  for  our  lesson.  Since 
1892  the  elector  there  has  enjoyed  the  right  to  use  what  is  called  the 
"  contingent  vote."  This  is  simply  the  "  order  of  preference  "  called  into 
play  to  assert  the  principle  of  election  by  absolute  majority.  This  plan 
provides  a  ballot  upon  which  the  elector  marks  his  first  and  second 
choice  or  "  order  of  preference." 

Where  but  two  candidates  are  in  the  field  there  is  no  occasion  for  the 
exercise  of  the  second  choice  in  order  to  insure  a  majority  nomination, 
but  where  there  are  three  candidates  or  more  than  three  candidates,  the 
ballot  provides  opportunity  for  the  delegate  to  indicate  his  second  choice. 
If,  after  the  ballots  are  counted,  no  candidate  has  an  absolute  majority 
of  first-choice  votes,  then  the  ballots  cast  for  the  candidate  receiving  the 
least  number  of  votes  on  the  list  are  assorted  with  reference  to  second 
choices  for  the  remaining  candidates. 

If  no  one  then  receives  a  majority  of  first  and  second-choice  ballots, 
a  similar  assortment  of  the  ballots  of  the  lowest  remaining  candidates  is 
made  on  the  basis  of  second  choices  and  added  to  the  votes  of  other 
candidates,  and  so  on  until  some  candidate  has  a  majority  of  first  and 
second  choice.  An  examination  of  this  subject  will  make  it  plain  that 
under  this  method  it  will  rarely  be  necessary  to  canvass  the  entire  second- 
choice  vote  to  secure  a  majority  nomination.  This  plan  effectually  pre- 
vents the  lowest  or  weakest  candidate  from  getting  a  nomination  on 
second  choice.  It  accords  to  the  first-choice  vote  its  due  importance  over 
that  of  the  second  choice,  and  secures  to  the  candidate  strongest  with 


398  AMERICAN  STATE  GOVERNMENT 

most  of  the  voters  the  majority  nomination.  This  is  a  simple  method  of 
determining  by  majority  vote  the  nomination  of  a  candidate  for  each  office 
on  the  primary-election  ballot. 

A  moment's  reflection  will  make  it  manifest  that  this  is  the  application 
of  precisely  the  same  principle  which  is  resorted  to  in  making  a  majority 
nomination  in  a  convention  which  takes  place  after  it  is  discovered  that 
there  is  no  nomination  made  upon  the  first  formal  ballot.  That  is  to  say, 
the  delegates  in  the  convention,  after  the  first  ballot,  must,  enough  of 
them,  abandon  the  support  of  the  candidate  of  their  first  choice  to  make 
a  sufficient  number  of  second-choice  votes,  with  those  of  the  first  choice, 
which  the  favored  candidate  had  from  the  beginning,  to  give  to  such 
candidate  a  clear  majority.  In  other  words,  giving  the  voter  a  chance  to 
express  not  only  his  first  but  his  second  choice  of  candidates  upon  the 
primary-election  ballot  applies  identically  the  same  principle  to  securing  a 
majority  nomination  in  a  primary  election  that  must  be  resorted  to  in  a 
delegate  convention  with  a  like  number  of  candidates  to  secure  a  majority 
nomination. 

An  examination  and  test,  such  as  any  one  can  readily  make  for  the 
purpose  of  illustration,  shows  the  reliability  of  the  method  here  outlined. 
The  voter  simply  indicates  on  his  ballot  not  only  the  name  of  the  candi- 
date of  his  first  choice,  but  the  name  of  any  other  candidate  for  the  same 
office,  for  whom  he  desires  his  vote  to  be  counted,  in  the  event  that  the 
candidate  of  his  first  choice  does  not  receive  an  absolute  majority  of  votes. 
This  indication  may  be  made  by  writing  the  figure  i  in  a  blank  space  on 
the  ballot,  after  the  name  of  the  candidate  of  his  first  choice,  and  the 
figure  2  after  the  name  of  the  candidate  of  his  second  choice;  and  the 
same  principle  may  be  applied,  allowing  the  exercise  of  further  choice, 
depending  ujjon  the  number  of  candidates  for  each  office. 

In  this  way  the  law  is  made  to  offer  to  the  elector  the  largest  possible 
opportunity  for  the  exercise  of  his  influence  as  a  citizen  in  the  selection 
of  the  men  who  are  to  become  his  representatives  in  government.  There 
could  be  no  failure  to  nominate  by  an  absolute  majority  vote,  and  that 
vote  would  always  represent  the  will  of  the  majority  of  the  electors.  The 
voter  would  have  no  complaint  to  offer  respecting  any  nomination.  The 
act  is  his  own.  He  has  not  been  compelled  to  hand  his  rights  as  a  voter 
over  to  some  delegate  to  be  disposed  of  in  a  convention  where  he  may 
easily  be  betrayed,  and  if  disappointed,  where  he  is  certain  to  believe  that 
he  has  been  betrayed. 

This  plan  would  go  far  to  strengthen  confidence  in  party  nomina- 
tions and  restore  faith  in  public  officials.  It  insures  to  the  voter  the  full 
measure  of  his  right  of  suffrage.  It  removes  the  last  objection  which  can 
!)e  raised  against  nominations  by  direct  vote.  It  is  right  in  princi|)le  and 
has  proven  successful  in  practical  application.  I  commend  it  to  )-our 
favorable  considerati(jn. 


ELECTIONS  AND  NOMINATIONS  399 

AN  ESSENTIAL  AMENDMENT  TO  THE  PRIMARY  LAW  ^ 

By  Charles  K.  Lush 

This  is  written  in  the  hope  of  making  plain  the  basic  principle  upon 
which  the  second-choice  amendment  to  the  primary  rests.  It  is  the 
principle  that  the  nominee  of  a  political  party  should  represent  the  party 
principles  or  policy  of  the  majority  of  the  voters  of  the  party.  It  prevents 
the  possibility  of  a  man  representing  the  principles  of  only  one  quarter 
of  the  voting  strength  of  the  party  being  nominated  as  the  candidate  of 
the  party,  and  in  direct  conflict  with  the  views  of  three  quarters  of  the 
voters  of  the  party.  It  was  the  recognition  of  this  principle  that  caused 
conventions  to  nominate  by  7)iajonty  vote  of  the  delegates  instead  of  by 
plurality.  The  writer  makes  only  one  contention,  and  that  is  that  the 
present  primary  law  is  a  manifest  absurdity  as  a  nominating  machine.  It 
prevents  a  number  of  candidates  representing  the  majority  sentiment  -as 
to  party  principles  from  coming  into  the  field  as  candidates  for  the  nom- 
ination, for  fear  the  candidate  of  the  minority  might  be  nrmed  by  receiving 
a  higher  vote  than  any  one  candidate  among  the  majority  candidates. 
The  present  primary  is,  in  effect,  a  convention  to  which  every  voter  is  a 
delegate  and  in  which  the  candidate  receiving  the  most,  votes  on  the  first 
ballot  is  the  nominee.  The  remedy  lies  either  in  the  adoption  of  the 
second-choice  amendment  (derisively  known  as  the  Mary  Ann  Law),  or 
by  return  to  the  convention  system. 

An  effort  has  been  made,  concerted  and  vigorous,  to  make  it  appear 
that  the  second-choice  system  is  very  complicated.  The  voter  casts  one 
vote  for  a  candidate  as  his  first  choice,  and  another  for  the  man  whom 
he  would  like  to  see  nominated  if  his  first  choice  cannot  be  nominated. 
So  far  as  the  voter  is  concerned,  there  is  no  "  complication."  Delegates 
who  attended  state  conventions  did  not  find  it  complicated  to  vote  for  their 
second  choice  after  they  found  that  their  first  choice  could  not  be  nom- 
inated. The  primary  is,  in  effect,  a  state  convention  to  which  every  voter  is 
a  delegate. 

But  there  are  two  "complications."  There  is  much  complication  in 
the  mind  of  the  average  statesman  and  politician  when  he  sits  down  and 
tries  to  figure  out  how  he  could  manipulate  the  second-choice  vote.  Being 
"  complicated  "  on  this  important  point,  it  is  to  his  interest  to  keep  every- 
body else  "complicated." 

The  second  "complication"  exists  in  the  minds  of  the  people,  through 
the  efforts  of  a  few  instructors,  the  newspapers,  etc.,  to  explain  how  the 
second-choice  vote  is  counted.  There  are  some  things  that  are  exceed- 
ingly difficult  to  make  clear  without  the  aid  of  illustration ;  for  instance, 
problems  in  simple  mathematics.    But  with  the  aid  of  the  very  simple 

1  From  a  pamphlet  on  The  Second-Choice  Arrangement. 


400 


AMERICAN  STATE  GOVERNMENT 


diagram  of  the  tally  sheet  and  the  checking  and  computing  blank,  this  is 
all  made  clear  in  an  instant.  It  is  one  of  the  things  you  can't  explain. 
You  have  got  to  show  it,  and,  to  begin,  the  ballot  is  given  herewith,  the 
crosses  indicating  the  choice  of  the  voters  in  this  instance. 


For  Governor 

First 
Choice 

Second 
Choice 

Adams 

Brown 

X 

Black 

White 

Gray 

X 

Following  is  the  official  tally  sheet  upon  which  the  first  and  second- 
choice  votes  are  entered,  being  called  off  in  this  case :  "  For  governor. 
Brown  first.  Gray  second."  Supposing  the  ballots  of  one  precinct  have 
been  called  off,  the  sheet  shows  as  follows : 


For    Governor 

Off/cidL   Tally  Sheet 

Firit    Choice 

Adams 

Second  Choice 

Crav 

Brown 

BJack               White 

!>*'  iHj  iMt  rw  mi 

ITH  mj  mi 

mj  mi 

Adams       2s 

IS 

10 

rmttuiHiiwnurHtiuiimin 

mi  mi  mi 

INI  mi  mi /m  nu 

III 

Brown       V3 

/sr 

zs 

3 

m4  mi  mi  mj 

mi  /HI  mi 

MU 

Black     20 

IS 

s- 

mimjiwiuimitui/wminiiiHJ 

im  11 

rm  mi 

mtiNi  rm  mi 

mi  III 

rrtt 

nti  ml 

White     SS 

7 

It 

30 

e 

MJ  tw  mj  II 

Uti  ni/  mj 

II 

Cray      i? 

/s- 

z 

ELECTIONS  AND  NOMINATIONS 


401 


Carried  down,  the  first-choice  vote,  or  first  ballot  of  the  "  convention,"  is 
as  follows : 

Adams 25 

Brown 43 

Black 20 

White 55 

Gray 17 

There  being  no  majority  on  the  count  of  first-choice  votes  cast,  and 
Gray  being  the  lowe^  man,  he  is  beaten  and  out  of  the  race,  so  those 
who  voted  for  Gray  are  entitled  to  have  their  votes  counted  for  their 
second  choice,  making  the  result  as  follows  : 

Adams 25 

Brown 43      15  58 

Black 20 

White 55       2         57 

Black  is  now  the  low  man,  and  the  men  who  voted  for  him  as  their 
first  choice  are  entitled  to  have  their  second-choice  votes  counted  for  their 
second  choice.    Repeated  as  above  brings  the  following  result : 

Adams 25 

Brown 5^     15  73 

White 57       5         62 

There  are  only  Brown,  White,  and  Adams  left,  and  Adams  being  de- 
feated and  low  man,  his  adherents  are  entitled  to  express  a  second  choice, 
and  their  votes  are  counted,  making  the  final  result  as  follows : 

Brown 73       o         73 

White 62      10         73 

It  will  be  seen  by  studying  the  above  table  that  Brown  made  no  gain 
on  the  final  "ballot,"  for  the  reason  that  none  of  the  25  voters  who 
voted  for  Adams  for  first  choice  voted  for  Brown  for  second  choice.  Ten 
of  them,  however,  voted  for  White  as  their  second  choice,  while  15  of 
them  voted  for  Black  as  their  second  choice.  These  15  second-choice 
votes  are  not  counted  for  the  reason  that  they  were  being  counted  for 
Adams  while  he  was  still  in  the  race,  and  before  Adams  was  out  of  the 
race  Black  was  out  of  it.  These  voters  simply  voted  for  two  losers,  as 
might  have  been  the  case  had  McGillivray  and  Connor  remained  in  the 
race  for  governor,  and  had  they  voted  for  Connor  for  first  choice  and 
McGillivray  for  second  choice.  This  explains  why,  in  the  above  showing 
between  Brown  and  White,  their  total  vote  is  only  145,  while  there  were 
160  votes  cast  in  all.  But  15  of  these  votes  were  cast  for  Adams  and 
Black,  both  of  whom  were  low  men,  —  two  losers. 

This  system  does  not  always  insure  a  majority  of  all  votes  cast,  but  it 
does  insure  the  nomination  of  a  candidate  who  represents  the  majority 


402  AMERICAN  STATE  GOVERNMENT 

sentiment  of  the  party  as  regards  party  principles.  Let  us  illustrate  by 
showing  what  can  happen  under  the  present  law,  where  a  first  choice 
alone  counts  and  the  high  man  is  nominated,  all  of  the  rest  being  "  elim- 
inated." To  begin  with,  remember  that  the  present  primary  is,  in  effect, 
a  party  convention  to  which  all  party  voters  are  delegates,  entitled  to  one 
vote  on  the  only  "  roll  call  "  allowed.  The  man  who  receives  the  highest 
vote  on  this  "  first  ballot  "  (the  primary  vote)  is  the  nominee  of  the  party. 
Let  us  suppose  there  were  3  tariff-reform  Republican  candidates  and 
I  stand-pat  candidate  in  a  congressional  district  and  3000  stand-pat  Re- 
publicans.   At  the  primary  the  result  could  reasonably  be  supposed  to  be 

as  follows : 

A,  stand-pat  candidate 3000 

B,  tariff-reform  candidate 2500 

C,  tariff-reform  candidate 2500 

D,  tariff-reform  candidate       ....      2000 

By  this  result,  with  the  present  system  of  the  highest  candidate  being 
the  nominee,  the  stand-pat  Republican  would  become  the  nominee  of  the 
7000  voters  absolutely  opposed  to  the  policy  advocated  by  him.  Could 
anything  be  more  absurd  than  this  ? 

Now  let  us  use  this  same  case  and  applv  the  second-choice  rule  by 
which  the  lowest  candidate  is  "  eliminated,"'  and  not  all  but  the  highest 
"  eliminated,"  which  is  the  present  primary  law. 

The  first  count  of  first-choice  votes  would  be  as  above  given  and  now 
put  down  again : 

A,  stand-pat  candidate 3000 

B,  tariff-reform  candidate 2500 

C,  tariff-reform  candidate       ....  2500 

D,  tariff-reform  candidate      ....  2000 

Each  voter  having  expressed  a  second  choice,  and  D,  one  of  the  tariff- 
reform  candidates,  being  the  low  man,  he  would  be  out  of  the  race,  so  the 
voters  who  voted  for  him  for  first  choice  would  be  entitled  to  have  their 
second-choice  votes  counted.  Now  would  they  not  be  sure  to  be  divided 
between  the  two  other  tariff-reform  candidates,  —  men  who  represented 
their  views  on  party  policy?  Suppose  they  had  divided,  1500  of  these 
having  been  cast  for  B  as  their  second  choice,  and  500  for  C.  The  final 
result  would  be : 

A,  stand-pat  Rcpiil)lican 3000 


B,  tariff-reform  Republican    ....     4000 

C,  tariff-reform  Republican    ....     3000 


I 


B  would  accordingly  be  the  candidate  representing  the  views  of  7000 
voters,  instead  of  A,  representing  the  tariff  policy  of  only  3000  voters. 

The  present  primar\'  law  is  an  absurdity  because  it  applies  the  plurality 
rule  to  what  is,  to  all  intents  and  purposes,  a  political  convention.  It  is 
exactly  the  same  as  though  the  old  convention  had  assembled  and  made 


ELECTIONS  AND  NOMINATIONS  403 

the  man  who  received  the  most  votes  on  the  first  ballot  the  nominee, 
even  though  he  represented  the  views  of  not  more  than  one  quarter  of 
the  delegates,  they  representing  by  the  same  proportion  the  views  of  the 
voters  who  sent  them  to  the  convention. 

Either  the  second-choice  amendment  to  the  primary  law  should  be 
adopted  or  delegates  should  be  chosen  to  a  convention  where  the  dele- 
gates, under  convention  rules,  would  always  nominate  a  candidate  repre- 
senting the  majority  sentiment  as  to  party  policy. 

The  failure  of  the  legislators  to  adopt  the  second-choice  amendment  at 
the  last  session  illustrates  how  difficult  it  is  to  secure  remedial  legislation 
in  a  case  of  this  kind.  No  sooner  is  a  voter  selected  from  the  army  of 
voters  and  made  an  officeholder  than  he  ceases  to  see  problems  from  the 
viewpoint  of  the  voters,  but  looks  at  them  from  his  own  position  as  an 
officeholder  and  prospective  manipulator  of  candidacies.  The  absence  of 
any  effective  champion  of  the  second-choice  amendment  — and  the  second 
choice  is  not  really  an  "  amendment,"  but  an  essential  part  of  the  pri- 
mary law  left  off  either  through  ignorance  or  reprehensible  cunning  —  is 
by  no  means  a  triumph  for  the  first  test  of  representative  government 
in  Wisconsin. 

The  present  primary  law  fosters  the  power  of  a  party  boss.  This 
"  boss,"  be  his  leadership  for  good  or  for  evil,  has  the  power  to  place 
candidates  early  in  the  field,  and  then  warn  other  men  not  to  become 
candidates  on  the  unassailable  ground  that  a  number  of  candidates  of 
the  majority  faction  might  split  the  vote  and  allow  the  solitary  candidate 
of  the  minority  to  be  chosen  as  the  party  nominee.  By  thus  naming  the 
candidate  of  the  majority  faction  of  the  dominant  party  the  boss  is  all- 
potential.  Had  the  second-choice  feature  been  left  a  part  of  the  law,  the 
leader  of  the  majority  faction  would  have  had  no  such  power,  for  several 
men  of  known  loyalty  to  the  principles  of  the  majority  faction  could  be 
candidates,  secure  in  the  knowledge  that  those  who  voted  for  them  as  a 
first  choice  would  give  their  second  choice  to  some  candidate  represent- 
ing the  same  principles  and  advocating  the  same  line  of  legislation,  thus 
precluding  the  nomination  of  the  minority  candidate.  The  boss,  or  leader, 
might  still  properly  give  his  support  to  some  one  of  the  candidates,  but 
it  would  be  plainly  a  matter  of  personal  preference,  and  not  justified  on 
the  ground  of  safeguarding  the  rights  of  the  majority  to  name  the  can- 
didate of  the  party. 

Under  the  present  nominating  law  it  is  really  necessary  that  the  "  boss," 
or  leader,  should  "eliminate"  the  candidates  of  the  majority  before  the 
primaries  are  held,  otherwise  the  candidate  of  the  minority  might  be  made 
the  nominee  of  the  party.  Under  the  second-choice  feature,  which  was 
a  part  of  the  Australian  law  and  left  off  by  the  drafters  of  the  Wisconsin 
law,  the  voters  do  this  "  eliminating  "  at  the  primaries.  Until  this  oppor- 
tunity of  selection  is  placed  in  the  hands  of  the  people  there  can  be  no 
true  representative  government  in  Wisconsin. 


404  AMERICAN  STATE  GOVERNMENT 

The  second  choice,  which  is  an  integral  part  of  a  primary  system,  would 
restore  the  rights  made  inoperative  by  caucus  and  convention  manipula- 
tion. When  that  is  done,  representative  government  will  be  something 
more  than  a  figure  of  speech  in  an  outburst  of  oratory. 


POPULAR  CONTROL  OF  SENATORIAL  ELECTIONS  ^ 

By  G.  H.  Haynes 

The  Constitution  requires  that  the  senators  from  the  several  states 
be  elected  "  by  the  legislatures  thereof."  Gradually,  however,  the  feel- 
ing has  become  widespread  that  many  of  the  men  who,  in  recent  years, 
have  found  their  way  to  the  Senate  are  little  disposed  to  hold  them- 
selves responsible  to  the  people  or  to  heed  the  broader  interests  of 
the  country.  Rightly  or  wrongly,  this  imperfect  sense  of  responsibility 
shown  by  the  senators  is  being  attributed  in  increasing  measure  to  the 
process  and  organ  of  their  election ;  and  the  same  distrust  of  state  legis- 
latures which  has  led  to  the  stripping  away  of  many  of  their  powers, 
through  amendments  to  state  constitutions  and  other  forms  of  direct 
legislation,  now  gives  rise  to  the  demand  that  the  choice  of  senators 
shall  no  longer  be  left  to  the  caprice  of  these  legislatures,  but  that  it 
shall  either  be  taken  away  from  them  entirely,  or  at  any  rate  be  sub- 
jected to  effective  popular  control.  The  first  of  these  demands  is  the 
basis  of  the  propaganda,  first  put  forward  eighty  years  ago,  and  in  the 
last  decade  rapidly  growing  in  volume  and  insistence,  that  the  Constitu- 
tion be  so  amended  as  to  provide  for  the  election  of  senators  by  the 
direct  vote  of  the  people.  In  many  ways  this  seems  both  the  most  direct 
and  the  most  natural  method  of  securing  senatorial  responsibility.  Yet  the 
obstacles  in  the  way  of  its  attainment  have  hitherto  proved  insuperable. 
They  arc  raised  not  only  by  those  who  have  no  faith  that  popular  elec- 
tion would  prove  an  effective  remedy,  but  also  by  those  who  regard  such 
a  change  of  the  Constitution  as  either  impossible  or  inexpedient.  Never- 
theless, during  the  past  decade  the  agitation  in  favor  of  this  amendment 
has  acquired  such  force  and  definiteness  that  to  many  its  adoption  seems 
close  at  hand. 

But  meantime  much  the  same  goal  has  been  sought  by  a  very  different 
route.  In  true  English  fashion,  custom  and  precedent  have  here  been 
at  work  changing  the  spirit  and  import  of  the  law  while  its  letter  remains 
ever  the  same.  Sometimes  by  mere  tacit  understanding,  sometimes  by 
the  insistence  of  political  parties,  .sometimes  by  the  direct  and  positive 
interposition  of  state  law,  this  movement  has  gone  forward  with  ever- 
increasing  force,  until  a  point  has  been  reached  where  it  is  well  to 
take  a  survey  of  what  has  already  been  done  and  attempt  a  forecast  of 
what  may  yet  be  accomplished  in  the  way  of  securing  popular  control 

1  From  Political  Science  Quarterly,  1905.    Reproduced  by  permission. 


ELECTIONS  AND  NOMINATIONS  405 

over  senatorial  elections  without  recourse  to  amendment  of  the  federal 
Constitution. 

Notwithstanding  our  rigid  Constitution's  decree  that  the  senators 
from  the  several  states  shall  be  elected  by  "  the  legislatures  thereof," 
this  act  of  the  legislatures  may  be  deprived  of  nearly  all  of  its  vitality. 
The  election  of  president  offers  an  illustration  of  the  filching  of  actual 
power  away  from  the  electors  in  whom  it  is  vested  by  law.  When  James 
Russell  Lowell,  a  Republican  elector  for  Massachusetts  in  1876,  was 
urged  to  exercise  his  independence  and  vote  for  Tilden,  he  declined, 
saying  that  "  whatever  the  first  intent  of  the  Constitution  was,  usage 
had  made  the  presidential  electors  strictly  the  instruments  of  the  party 
which  chose  them."  The  Constitution  remains  unchanged,  yet  presiden- 
tial electors  recognize  that  they  have  been  stripped  of  all  discretion. 
It  appears  that  under  certain  conditions  the  election  of  senators  by  state 
legislatures  has  been  and  can  be  made  an  equally  perfunctory  affair. 

The  simplest  way  in  which  popular  suggestion  or  pressure  may  be 
brought  to  bear  upon  the  legislature  is  through  the  indorsement  or 
nomination  of  some  candidate  for  senator  by  the  state  convention  of  the 
party.  Thus,  in  April,  1858,  the  Democratic  convention  of  the  state  of 
Illinois  gave  its  indorsement  to  the  position  which  Douglas  had  taken 
on  the  Kansas  question.  Every  one  recognized  this  as  equivalent  to 
naming  him  as  the  party's  candidate  for  reelection  to  the  Senate  by  the 
legislature  which  was  to  meet  a  few  months  later.  The  Republicans 
promptly  put  forward  Lincoln  as  his  opponent,  and  at  their  convention 
in  June  passed  the  following  resolution :  "  Honorable  Abraham  Lincoln 
is  our  first  and  only  choice  for  United  States  senator  to  fill  the  vacancy 
about  to  be  created  by  the  expiration  of  Mr.  Douglas's  term  of  oflfice." 
In  point  of  law  the  great  debate  which  followed  was  but  an  incident  in 
the  election  of  a  legislature  with  which  alone  rested  the  power  of  elect- 
ing a  senator,  but  the  whole  country  knew  who  was  to  be  senator  as 
soon  as  the  votes  for  the  members  of  the  legislature  had  been  counted. 
The  issue  between  these  two  candidates  had  been  so  dominant,  the 
people's  will  so  directly  expressed,  that  doubt  or  hesitation  was  out  of 
the  question.  Four  years  later  Charles  Sumner  had  lost  favor  with  cer- 
tain elements  of  the  Republican  party  in  Massachusetts,  on  the  eve  of 
the  expiration  of  his  second  term.  His  adherents,  therefore,  were  deter- 
mined that  the  party  should  be  pledged  to  his  support,  and  in  the  state 
convention  they  secured  the  adoption,  not  without  opposition  but  with 
much  enthusiasm,  of  a  complimentary  resolution  nominating  him  for 
reelection.  In  the  legislature  his  election  followed  without  opposition 
and  as  a  matter  of  course. 

Yet  this  method  does  not  always  yield  assured  and  satisfactory  results. 
In  both  cases  already  cited  only  two  great  parties  were  pitted  against 
each  other,  and  the  issue  between  them  was  clearly  drawn.  But  in  the 
more  tangled  political  conflicts  of  recent  years,  where  parties  are  split 


4o6  AMERICAN  STATE  GOVERNMENT 

into  factions  and  where  issues  are  purposely  blurred,  the  skirmish  in  the 
convention  by  no  means  decides  the  campaign.  When  the  legislature 
meets,  the  chances  are  that  no  one  of  the  convention-indorsed  candidates 
will  secure  a  clear  majority  on  the  first  ballot,  and  in. the  attempts  to 
form  coalitions,  the  restraints  of  the  convention's  instructions  soon  get 
relaxed.  Even  if  the  man  of  the  convention's  choice  is  finally  elected,  it 
is  only  after  a  bitter  contest,  in  which  charges  of  bad  faith  and  corrup- 
tion are  freely  exchanged.  Precisely  such  an  experience,  for  example, 
was  had  in  the  Minnesota  election  of  1893,  in  the  hard-fought  election 
of  the  late  Senator  Cushman  K.  Davis,  and  public  dissatisfaction  found 
expression  in  such  editorial  comment  as  this : 

When  the  legislators  refuse  to  vote  for  a  candidate  who  has  been  indorsed 
by  the  people,  by  the  party  convention,  and  the  united  party  action,  and  for 
such  refusal  are  able  to  offer  not  a  syllable  of  objection  to  the  candidate's 
moral  and  intellectual  fitness,  it  is  time  such  men  were  not  given  power  to 
defeat  the  people's  will.^ 

Except  in  states  where  one  united  party  has  an  overwhelming  majority, 
and  until  the  choice  of  senator  comes  to  be  the  dominant  issue  in  the 
election  of  members  of  the  legislature,  they  will  therefore  continue, 
whether  for  good  or  ill,  to  exercise  not  a  little  independence  of  conven- 
tion restraints,  to  the  occasional  confounding  of  the  people's  best  hopes 
and  most  confident  expectations.  Moreover,  it  must  not  fail  to  be 
observed  that,  while  the  designation  or  indorsement  of  a  senatorial  can- 
didate may,  under  certain  conditions,  amount  to  his  virtual  election,  it 
involves  not  one  whit  of  genuine  popular  control  of  senatorial  elections, 
unless  the  party  machinery  in  that  state  is  so  contrived  and  so  operated 
as  to  insure  a  trustworthy  expression  of  the  people's  choice.  Otherwise 
it  amounts  merely  to  the  choice  of  senator  by  a  servile  convention  at  the 
dictation  of  the  ring  or  of  the  boss,  and  the  last  state  of  that  election  is 
worse  than  the  first. 

In  recent  years  no  other  department  of  political  legislation  of  the 
several  states  has  been  subject  to  such  restless  change  as  that  relating 
to  the  nomination  of  candidates  for  public  office.  Repeated  and  painful 
experience  of  the  abuses  of  party  machinery,  and  in  particular  of  the 
delegate-nominating  convention,  has  led  to  a  determined  movement  for 
the  securing  of  the  direct  jirimary.  Throughout  the  country  the  domi- 
nant tendency  has  become  to  accord  to  the  people,  in  form  at  least,  the 
right  and  the  opportunity  to  share  in  the  choice  of  men  for  the  public 
service.  Although  the  senatorship  lies  outside  the  state  sy.stcm,  direct 
recourse  to  the  people  in  tlie  primaries  for  the  selection  of  senatorial 
candidates  finds  a  precedent  as  early  as  1890.  Again,  as  in  the  indorse- 
ment of  senatorial  candidates  by  party  conventions,  it  was  Illinois  that 
set  the  example.    Says  Senator  Palmer : 

1  Minneapolis  Tribune,  January  21,  1893. 


ELECTIONS  AND  NOMINATIONS  407 

Election  of  senators  by  a  popular  vote,  which  by  common  consent  should 
control  the  members  of  the  legislature,  was  not  novel  to  the  people  of  Illinois, 
for  they  were  familiar  with  the  great  contest  of  1858. 

In  1890  the  state  committee  of  the  Democratic  party,  in  connection  with  the 
call  of  the  state  convention,  put  two  propositions  before  the  voters:  (i)  the 
propriety  of  a  nomination  by  the  proposed  state  convention  of  a  candidate  for 
senator,  to  be  voted  for  by  the  people  at  the  next  election,  as  directly  as  possi- 
ble under  the  provisions  of  the  Constitution  ;  and  (2)  the  selection  of  a  candi- 
date for  senator,  if  it  should  be  determined  that  a  candidate  be  nominated. 

Result:  Primary  conventions  held  in  more  than  90  out  of  the  102  counties 
of  the  state,  including  the  county, of  Cook,  which  now  contains  nearly  if  not 
fully  one  fourth  of  its  population,  determined  to  nominate  a  candidate,  and 
indicated  their  preference  for  the  person  to  be  presented  to  the  people.  The 
state  convention  expressly  approved  the  plan  of  direct  election  and  indorsed  the 
candidate.  He  accepted  the  platform  and  toured  the  state.  On  the  issues  10 1 
(out  of  202)  members  were  elected  to  the  legislature  by  an  aggregate  plurality 
of  30,000  and  over.  These  loi  members  of  the  legislature,  regarding  them- 
selves as  electors  chosen  to  register  the  will  of  the  people,  between  the  2 1  st  day 
of  January,  1901,  and  the  nth  of  March,  voted  for  the  candidate  nominated 
in  153  ballots,  and  on  the  154th  ballot  they  were  joined  by  two  members  of 
the  House  of  Representatives  who  were  favorable  to  the  election  of  senators 
by  the  direct  vote  of  the  people  of  the  several  states,  and  on  that  ballot  a  senator 
was  elected.^ 

It  was  by  virtue  of  the  will  of  the  people,  thus  directly  expressed  in 
his  own  nomination  and  election,  that  Senator  Palmer  felt  himself  called 
of  the  people  to  stand  forth  as  their  champion  in  the  Senate  in  the  fight 
for  the  amendment  of  the  Constitution.  Yet  this  very  experience  shows 
how  far  from  effective,  in  such  a  state  as  Illinois,  is  the  popular  control 
which  can  be  exercised  over  senatorial  elections  by  direct  nominations 
indorsed  by  party  conventions  and  followed  by  the  election  of  legislators 
upon  this  as  the  main  issue  ;  for,  although  Palmer's  candidacy  was  backed 
by  a  "  plurality  of  over  30,000,"  the  legi-slature  was  in  deadlock  for  nearly 
seven  weeks  before  his  election  was  effected,  and  even  then  it  was  brought 
about  only  by  the  votes  of  two  men  who,  as  his  opponents  asserted,  had 
been  pledged  to  vote  against  him.^ 

It  is  in  the  states  where  a  single  party  has  so  established  its  dominance 
as  virtually  to  take  over  to  itself  the  functions  of  the  state  that  the  direct 
primary  has  found  most  ready  adoption.  So  congenial  has  this  new  insti- 
tution proved  throughout  the  South  that  it  "  is  now  no  unusual  thing  for 
the  number  of  votes  cast  in  a  general  election  to  fall  to  a  very  small  pro- 
portion, sometimes  as  low  as  from  10  to  25  per  cent  of  the  vote  cast  in 
the  nominating  primary  for  the  same  candidates."  ^  As  the  people  of  the 
southern  states  have  accustomed  themselves  to  "  take  part  in  the  choice 

1  Congressional  Record,  Vol.  XXIII,  p.  1267. 

2  Compare  Senator  Chandler's  account  of  this  election,  Congressimial  Record,  April  12, 
1892,  Vol.  XXIII,  p.  3197. 

3  Francis  G.  Caffey,  Political  Science  Quarterly,  March,  1905,  Vol.  XX,  p.  61. 


4o8  AMERICAN  STATE  GOVERNMENT 

of  their  [state]  officials  almost  entirely  by  the  indirect  method  of  sharing 
in  the  selection  of  the  candidates  of  one  party,"  it  has  been  almost  inevi- 
table that  the  same  procedure  should  be  extended  to  the  choice  of  sena- 
tors ;  and,  without  any  explicit  provision  of  law,  in  most  of  the  states 
senatorial  contests  have  come  to  be  finally  decided  in  the  primaries.  How 
closely  this  method  may  approximate  to  a  popular  election  of  senators  is 
clearly  shown  by  Governor  Jeff.  Davis,  of  Arkansas : 

The  last  state  convention  adopted  a  resolution  that  the  candidate  for  the 
United  States  Senate  receiving  the  highest  number  of  votes  in  the  primaries 
should  be  declared  the  choice  of  the  Democratic  party  for  the  United  States 
Senate  by  the  state  convention,  just  as  they  declare  the  nominees  of  the  party 
for  state  offices  ;  and  of  course  the  legislature  has  no  duty  depending  upon  them 
but  to  cast  their  vote  for  the  person  declared  the  successful  candidate  by  the  state 
convention.  This  is  absolutely  equivalent  to  election  by  the  people.  You  see 
this  can  happen  in  this  state  because  the  nominees  of  the  Democratic  party  are 
considered  as  elected,  as  our  legislature  consists  of  135  members  and  only  two 
are  Republicans.^ 

To  show  the  extent  to  which,  in  many  states,  the  legislature's  function 
in  the  election  of  senators  has  become  atrophied,  it  is  only  necessaiy  to 
note  the  growing  frequency  of  unanimous  elections.  In  1900  Senator 
Morgan  received  a  unanimous  election  from  the  Alabama  legislature,  and 
in  Louisiana  two  senators  were  thus  elected.  In  1901  Senator  Tillman 
was  thus  returned  to  the  Senate  from  South  Carolina;  in  1903  the  vote 
was  unanimous  for  Pettus  in  Alabama  and  for  Latimer  in  South  Carolina. 
In  1904  Foster,  in  Louisiana,  and  both  Money  and  McLaurin  in 
Mississippi  were  unanimously  elected.  Upon  the  surface  these  election 
returns  might  seem  to  indicate  such  preeminent  qualifications  in  the 
senators  chosen  as  totally  to  eclipse  all  other  candidates.  As  a  matter  of 
fact,  however,  many  of  these  unanimous  elections  have  been  preceded  by 
the  most  acrimonious  of  campaigns,  'i'hc  unanimity  of  the  election  in  the 
legislature  merely  signifies  that,  inasmuch  as  all  the  questions  had  been 
.settled  in  the  primary,  "  the  election  itself  is  a  mere  legal  formality,  to 
which  no  more  attention  is  given  than  is  necessary  to  record  the  result 
of  the  primary."  Throughout  the  South  this  method  of  nomination  has 
been  introduced  as  a  mere  matter  of  party  rules,  binding  upon  the  domi- 
nant party  and  hence  having  the  effect  of  genuine  laws.  In  Mississippi, 
on  the  other  hand,  the  act  of  1903  invokes  the  strong  arm  of  the  law  to 
regulate  the  primary  and  to  make  it  as  much  a  function  of  the  state  as  is 
the  election  itself.  This  law  abolishes  all  nominating  conventions  of  what- 
ever grade  and  makes  specific  provision  for  the  nomination  of  all  elective 
officers,  including  United  States  senators,  by  direct  primaries. 

In  other  sections  of  the  country,  too,  the  direct  |)rimary  is  making 
rapid  progress.  The  recent  laws  in  Minnesota,  Michigan,  Indiana,  and 
Massachusetts  provide  machinery  which  may  readily  be  adapted  to  the 

1  Letter  of  Governor  Davis  to  the  writer,  August  29,  1904. 


ELECTIONS  AND  NOMINATIONS  409 

nomination  of  senators ;  while  the  new  laws  of  Wisconsin  and  Illinois 
proceed  directly  to  that  goal. 

In  western  states  the  tendency  in  recent  years  is  not  to  rest  content 
with  the  designation  of  senatorial  candidates  by  the  state  convention,  nor 
even  with  the  nomination  of  candidates  by  the  primaries,  but  rather  to 
insist  upon  going  through  all  the  forms  of  a  popular  election,  the  whole 
process  being  under  the  supervision  not  of  party  leaders  but  of  state 
officials.  Thus  as  early  as  1875  the  following  proposition  was  submitted 
by  itself  to  the  voters  of  Nebraska,  and  was  by  them  adopted  as  a  part 
of  the  new  constitution  of  that  year : 

The  legislature  may  provide  that,  at  a  general  election  immediately  preced- 
ing the  expiration  of  the  term  of  a  United  States  senator  from  this  state,  the 
electors  may  by  ballot  express  their  preference  for  some  person  for  the  office 
of  United  States  senator.  The  votes  cast  for  such  candidates  shall  be  canvassed 
and  returned  in  the  same  manner  as  for  state  officers. 

This  thoroughly  democratic  provision  for  a  preliminary  popular  elec- 
tion was  for  a  long  time  absolutely  unique ;  yet  the  people  of  Nebraska 
have  seemed  to  take  little  interest  in  it.  In  twenty-five  years  and  more 
since  it  became  a  part  of  the  constitution  they  have  made  use  of  it  but 
once,  and  then  with  results  that  are  significant.  In  1886  General  Van 
Wyck  made  an  active  canvass  of  the  state  in  his  own  behalf  as  an  anti- 
monopolist.  Neither  the  Republican  nor  the  Democratic  party  put  for- 
ward a  senatorial  candidate  in  the  popular  election  in  November,  at 
which,  although  138,209  votes  were  cast  for  governor,  only  50,448  voters 
expressed  a  preference  for  senator ;  of  these  more  than  9 1  per  cent  voted 
for  Van  Wyck.  When  the  legislature  met,  he  led  on  the  first  two  ballots, 
receiving  40  votes  out  of  100;  but  he  failed  to  secure  the  election,  a 
result  which  he  attributed  to  the  interference  of  railroad  officials  and 
monopolists.  As  to  the  present  attitude  of  the  people  toward  this  election, 
the  governor  of  Nebraska  writes  : 

In  1898  this  matter  was  included  in  the  proclamation,  but  there  was  a  very 
feeble  response.  From  most  counties  no  returns  were  made.  In  the  fifth  and 
sixth  congressional  districts  combined  (which  would  normally  contain  not  less 
than  75.000  voters)  only  626  votes  were  cast  on  this  preference.  It  appears 
to  be  generally  popular  throughout  the  state,  but  there  is  a  general  apathy  when 
it  comes  to  placing  the  matter  on  the  ballot.^ 

In  other  states  more  recent  laws  have  been  framed  upon  this  subject 
with  greater  and  greater  particularity.  Their  titles  and  preambles  leave 
no  doubt  as  to  their  motive.  Thus  in  1899  Nevada  enacted  a  law  en- 
titled "  An  act  to  secure  the  election  of  United  States  senators  in 
accordance  with  the  will  of  the  people  and  the  choice  of  the  electors  of 
the  state,  and  to  obtain  an  expression  of  such  choice  and  to  prevent 
fraud  and  official  dereliction  of  duty  in  connection  with  such  elections." 

1  Letter  of  Governor  John  H.  Mickey  to  the  writer,  August  31,  1904. 


4IO 


AMERICAN   STATE  GOVERNMENT 


This  law  provides  that  candidates  for  the  Senate  may  be  nominated  in 
the  same  manner  as  the  candidates  for  the  state  offices ;  the  names  of 
the  senatorial  candidates  having  been  given  a  place  upon  the  ballot,  the 
votes  upon  them  are  certified  in  the  same  manner  as  upon  the  other 
candidates,  and  the  Secretary  of  State  is  required  to  transmit  the  results 
to  the  legislature  when  it  meets  for  the  formal  election.  Accordingly,  in 
Nevada,  a  party  convention  nominates  on  the  same  day  —  as  was  done 
August  lo,  1904  —  candidates  for  the  United  States  Senate,  for  repre- 
sentative in  Congress,  and  for  judge  of  the  state  supreme  court.  The 
subsequent  election  process  in  the  case  of  all  these  candidates  is  pre- 
cisely the  same,  except  that  the  election  of  the  judge  and  of  the  member 
of  Congress  is  complete  when  the  returns  of  the  popular  vote  are  duly 
certified,  while  in  the  case  of  the  senator,  the  only  election  of  which 
federal  law  takes  any  account  does  not  begin  until  months  later,  when 
the  legislature  takes  up  that  task.  As  regards  the  election  of  a  senator, 
accordingly,  all  these  elaborate  operations  are  but  a  complicated  method 
of  bringing  moral  pressure  to  bear  upon  men  who,  in  spite  of  it  all,  have 
a  perfect  legal  right  to  vote  for  the  man  of  their  party  allegiance  or  of 
their  personal  liking. 

By  the  Oregon  law  of  1901,  as  in  Nevada,  the  whole  process  is  as- 
similated to  that  employed  in  the  election  of  state  officers  ;  in  one  respect, 
however,  the  people's  choice  for  senator  is  more  forcibly  obtruded  upon 
the  legislature.  Duplicate  copies  of  the  returns  are  to  be  sent  to  the 
House  and  to  the  Senate,  and  their  respective  presiding  officers  are 
required  to 

lay  the  same  before  the  separate  Houses  when  assembled  to  elect  a  senator  in 
Congress,  as  now  required  by  the  laws  of  Congress,  and  it  shall  be  the  duty 
of  each  House  to  count  the  votes  and  announce  the  candidate  for  senator  having 
the  highest  number  ;  and  thereupon  the  Houses  shall  proceed  to  the  election  of 
a  senator,  as  required  by  the  act  of  Congress  and  the  constitution  of  this  state. 

The  plain  intent  of  this  law  was  to  subject  senatorial  elections  to  a 
popular  control  more  direct  and  more  imperative  than  had  ever  before 
been  attempted  by  any  state.  It  would  hardly  be  possible  to  say  to  the 
legislature  more  plainly,  "  This  is  the  way ;  walk  ye  in  it."  What  has 
been  the  result?  At  the  assembling  of  the  next  legislature  Governor 
Geer  put  before  them  the  situation  as  follows : 

In  obedience  to  a  general  demand  from  the  people  and  the  press  of  the  state, 
the  last  legislature  passed  a  law  ijiovicling  for  a  direct  vote  on  candidates  for 
United  States  senator.  After  a  careful  revision  during  its  passage  this  law  was 
enacted  by  a  vote  that  was  practically  unanimous,  and  in  exact  accord  with  its 
provisions  the  popular  vote  was  held  last  June.  ...  In  many  states  of  the 
Union  the  result  of  this  first  attempt  at  the  popular  vote  for  United  States 
senators  is  watched  with  much  interest,  and  its  prompt  observance  and  ratifica- 
tion will  not  only  encourage  its  adoption  in  other  states,  but  will  prove  the 


ELECTIONS  AND  NOMINATIONS  411 

sincerity  of  our  protestations  in  favor  of  popular  election  of  senators  and  render 
impossible  a  repetition  of  former  experiences  in  Oregon,  to  prevent  which  this 
law  was  formulated,  supported,  and  adopted. 

This  experiment  certainly  deserved  the  serious  attention  of  the  other 
states,  but  the  note  of  strenuousness  in  the  governor's  words  in  reference 
to  it  may  possibly  be  related  to  the  fact  that  he  himself  was  the  candi- 
date who  had  carried  the  popular  election  by  a  large  majority.  On  the 
very  day  when  the  legislature  had  been  thus  exhorted,  January  20,  1902, 
there  were  transmitted  to  the  separate  Houses  of  the  legislature,  with  all 
due  formality,  copies  of  an  abstract  of  votes  cast  at  the  general  election 
for  senator  held  during  the  previous  June.  In  the  House  the  Speaker 
appointed  a  committee  of  three  to  assist  in  canvassing  the  vote,  and  the 
result  was  announced  as  follows :  For  T.  T.  Geer,  44,697  ,  for  C.  E.  S. 
Wood,  32,627.  The  record  proceeds:  "The  election  of  United  States 
senator  being  next  in  order,  Mr.  Denny  placed  in  nomination  Honorable 
T.  T.  Geer,  Mr.  Phelps  placed  in  nomination  Honorable  C.  W.  Fulton, 
Mr.  Galloway  placed  in  nomination  Honorable  C.  E.  S.  Wood.  The  roll 
was  called  with  the  following  result:  Geer,  12  ;  Fulton,  19  ;  Wood,  12"; 
and  scattering  votes  for  eleven  other  candidates.  Thus  the  man  who  had 
secured  a  majority  of  37  per  cent  in  the  popular  vote  received  only  a 
small  minority  on  this  first  ballot  in  the  House.  The  election  was  thrown 
into  the  joint  assembly,  and  there  the  deadlock,  which  seems  to  have 
become  the  normal  thing  in  the  legislatures  of  Oregon,  forthwith  began. 
Not  until  it  had  lasted  more  than  five  weeks  did  it  become  possible,  at  a 
night  session,  on  the  forty-second  joint  ballot,  to  elect  a  senator.  The 
candidate  elected  was  a  man  for  whom  not  a  single  vote  had  been  cast 
in  this  much-vaunted  popular  election,  which  had  been  instituted  for  the 
express  purpose  of  affording  the  people  "  an  opportunity  to  instruct  their 
senators  and  representatives  in  the  legislative  assembly  as  to  the  election 
of  a  senator  in  Congress  from  Oregon." 

But  schemes  for  controlling  the  legislature's  choice  have  gone  even 
further.  In  Colorado  there  was  recently  introduced  a  bill  of  a  much 
more  radical  nature.  It  provided  that  at  the  general  election  next  pre- 
ceding the  time  for  electing  a  United  States  senator,  each  political  party 
might  place  upon  the  ballot  the  names  of  five  or  less  candidates  for  the 
Senate,  and  bound  the  members  of  the  legislature  under  penalty  of  ex- 
pulsion to  vote  for  the  candidates  of  their  respective  parties  receiving 
the  greatest  number  of  popular  votes.  This  bill  did  not  become  a  law. 
Had  it  done  so,  its  constitutionality  might  possibly  have  been  successfully 
contested.  But  its  introduction  is  highly  significant  of  the  growing  deter- 
mination on  the  part  of  the  people  of  the  western  states  that  in  electing 
senators  their  state  legislators  shall  presume  to  exercise  no  independence 
of  choice,  but  shall  merely  register  the  people's  expressed  will.  The 
fundamental  idea  in  this  novel  Colorado  proposal,  it  is  interesting  to  note, 
has  received  the  approval  of  distinguished  authority :  in  the  debate  over 


412 


AMERICAN  STATE  GOVERNMENT 


the  law  of  1866  both  Senator  Williams  and  Senator  Sumner  insisted 
that,  although  the  Constitution  directed  that  senators  should  be  chosen 
by  the  legislatures,  their  constituents  had  a  right  to  instruct  the  members 
as  to  their  votes  for  senator,  and  had  a  right  to  be  obeyed. 

It  may  prove  possible  for  the  states  to  give  the  people  free  power  of 
nomination  and  yet  leave  to  the  legislatures  a  power  of  election  which 
has  not  been  reduced  to  a  mere  form.  Along  this  line  the  suggestion  has 
recently  been  made  that  the  names  of  all  candidates  who  receive  a  cer- 
tain number  of  votes  (  say  3000  or  5000  )  in  the  direct  primaries  be  printed 
upon  the  official  ballot  at  the  general  state  election  ;  and  that  the  result  of 
this  election,  as  represented  by  the  list  of  those  candidates  (  say  five  or 
ten  )  who  have  received  the  highest  number  of  votes,  be  a  popular  instruc- 
tion to  the  legislature  to  choose  from  them  a  senator  by  the  Australian 
ballot,  each  member  to  vote  on  the  first  ballot  for  three  on  the  list,  and 
on  the  second  for  one  (  or  two,  as  the  case  may  be )  out  of  the  three 
highest,  as  determined  by  the  first  ballot.  Among  the  benefits  to  be 
expected  from  such  an  elective  process  it  is  predicted  that  choice  would 
no  longer  be  a  choice  of  two  evils,  and  that  worthy  candidates  would 
"  tend  to  multiply,  since  they  could  allow  their  names  to  be  used  without 
loss  of  self-respect."  ^  This  scheme  has  been  criticized  as  "  academic," 
yet  it  has  much  to  commend  it  for  practical  experiment.  The  constitu- 
tionality of  limiting  the  legislature's  range  of  choice  to  the  list  of  candi- 
dates sent  up  by  the  people  may  be  questioned ;  but  even  if  such  a 
limitation  were  not  rigidly  enforced,  the  list  of  nominees  with  such  back- 
ing could  not  fail  to  have  a  large  measure  of  influence. 

The  object  of  this  study  has  not  been  to  set  forth  isolated  experiments 
in  constitutional  law  and  custom,  but  to  trace  the  progress  of  a  movement 
which,  during  the  past  thirty  years,  has  taken  on  different  forms,  has 
employed  different  means  and  methods,  but  has  ever  kept  the  same  spirit 
and  aim,  —  a  determination  that  the  Senate  of  the  United  States  shall 
be  made  responsible  to  the  people. 

The  route  first  attempted  was  by  way  of  an  amendment  to  the  Con- 
stitution, providing  for  the  election  of  senators  by  the  direct  vote  of  the 
people.  Only  under  urgent  prompting  from  outside  did  Congress  accord 
.serious  attention  to  this  project;  for  years  it  received  little  more  than 
perfunctory  lip  service ;  yet  so  insistent  became  the  demand  that  five 
times,  and  by  ever-increasing  majorities,  the  House  of  Representatives 
has  passed  a  resolution  proposing  such  an  amendment.  But  progress 
toward  the  goal  by  this  route  has  always  been  blocked  upon  reaching 
the  frozen  sea  of  the  Senate's  stolid  resistance.  In  despair  of  success 
upon  this  line,  recourse  has  been  had  to  the  optional  but  hitherto  untried 
method  of  proposing  amendments;  state  legislatures  have  been  calling  upon 
Congress  to  summon  a  convention  for  the  express  purpose  of  initiating 


1  Sec   I'.  Garrison,  "The    Reform    of  the    Senate,"   Atlantic   Monthly,    August,    1S91, 
Vol.   I.XVIII,  pp.  227-234. 


ELECTIONS  AND  NOMINATIONS  413 

this  amendment.  In  one  form  or  another  the  legislatures  of  thirty-one 
states  — -  more  than  the  full  two  thirds  prescribed  by  the  Constitution  — 
have  communicated  to  Congress  their  formal  approval  of  the  proposed 
change  in  the  Constitution ;  indeed,  if  the  votes  in  the  House  be  taken 
as  a  fair  representation  of  the  will  of  the  people  in  their  constituencies, 
only  two  states  in  the  Union  have  failed  to  give  their  indorsement.  Along 
this  line,  then,  the  movement  has  reached  a  point  where  it  needs  but  the 
putting  of  these  requests  into  a  common  form,  and  the  marshaling  of 
this  scattering  fire  of  resolutions  into  one  concerted  volley  of  demand,  to 
constitute  a  mandate  which  the  Constitution  gives  Congress  no  warrant 
but  to  heed.  That  the  House  would  offer  no  obstruction  every  precedent 
makes  clear.  Would  the  Senate  still  demur  and  thus  invite  disaster 
upon  itself .' 

Meantime  a  vast  deal  of  ingenuity  has  been  devoted  to  attempts  to 
reach  popular  control  of  senatorial  elections  by  some  other  route  than  the 
amending  of  the  Constitution.  While  the  form  of  election  by  the  legis- 
lature is  retained,  its  spirit  has  been  radically  changed.  In  no  state  in 
the  Union  to-day  do  members  of  the  legislature  proceed  to  the  election 
of  a  senator  with  that  enlightened  independence,  that  freedom  of  indi- 
vidual discretion  in  the  choice,  from  which  the  Fathers  anticipated  such 
beneficent  results.  Everywhere  the  legislators  approach  the  task  under 
the  domination  of  party,  and  in  every  state  where  one  well-disciplined 
party  is  in  power  the  result  of  the  election  is  a  certainty  even  before  the 
legislature  convenes.  Not  only  has  party  spirit  claimed  this  election  for  its 
own,  but  the  party's  choice  for  senator  is  often  made  before  the  members 
of  the  legislature  are  elected,  and  is  obtruded  upon  that  body  by  the  state 
convention.  Already  in  about  a  third  of  the  states,  either  under  party  rules 
or  in  accordance  with  the  explicit  provisions  of  state  law,  direct  primaries 
name  the  candidates,  and  wherever  a  strong  party  is  supreme  this  nomi- 
nation is  tantamount  to  an  election.  In  four  states  provision  is  made  for 
a  popular  "  election  "  carried  out  under  the  supervision  of  officials  not  of 
the  party  but  of  the  state,  —  an  election  as  complete  in  all  its  details  and 
formalities  as  is  that  of  the  governor,  yet  as  void  of  legal  power  to  bind 
the  legislature  in  the  real  election  of  a  senator  as  would  be  the  resolutions 
adopted  by  a  boys'  debating  society. 

Everywhere  the  movement  for  the  direct  primary  is  gaining  ground. 
How  will  this  advance  affect  the  movement  for  an  amendment  authorizing 
popular  election  of  senators  ?  Both  are  outgrowths  of  the  same  demo- 
cratic spirit.  Some  enthusiasts  for  the  direct  primary  claim  that  the  adop- 
tion and  intelligent  use  of  that  device  will  restore  to  the  legislatures  their 
pristine  purity  and  independence  and  fit  them  to  perform  the  task  of 
selection  which  the  Fathers  devolved  upon  them.  But  this  optimistic 
forecast  neglects  two  of  the  plainest  lessons  of  experience.  In  the  first 
place,  the  betterment  of  the  legislatures  through  the  nomination  of  their 
members  by  direct  primaries  does  nothing  to  remove  the  perverting  and 


414  AMERICAN  STATE  GOVERNMENT 

corrupting  influences  exerted  upon  the  legislatures  by  the  retention  of  this 
incongruous  electoral  function.  Of  all  the  causes  which  have  tended  to 
degrade  our  lawmaking  bodies  hardly  any  other  has  exerted  so  malign  a 
potency.  To  these  bad  influences  the  direct  primary  aims  merely  to  sub- 
ject a  higher  grade  of  legislators,  possessed,  it  is  assumed,  of  greater 
powers  of  resistance.  In  the  second  place,  the  Oregon  fiasco  of  1903 
was  hardly  needed  to  afford  convincing  proof  that  the  indorsement  of 
senatorial  candidates  by  state  conventions,  their  nomination  by  direct 
primaries,  even  their  "  election "  by  an  overwhelming  majority  of  the 
vote  of  the  people,  may  count  absolutely  for  naught  in  influencing  the 
real  election  at  the  hands  of  a  legislature  ruled  by  party  bosses  or  rent 
by  factions  which  this  very  election  has  brought  into  being.  In  the  very 
states  where  popular  control  of  senatorial  elections  is  most  needed,  the 
best-laid  schemes  for  its  realization  have  proved  futile. 

What  then  is  to  be  the  outcome  ?  That  depends  not  a  little  upon  the 
temper  and  action  of  the  Senate  itself.  If  senators  have  foresight  enough 
to  discern  the  cloud  while  it  is  yet  but  the  size  of  a  man's  hand,  the  gath- 
ering tempest  of  discontent  may  be  averted.  For,  in  comparison  with  a 
rule-ridden  House  that  has  ceased  to  be  a  deliberative  body,  a  Senate 
that  gave  evidence  of  a  sense  of  responsibility  to  public  opinion  might  win 
public  confidence.    But  can  self-regeneration  be  expected  of  the  Senate  ? 

HOW  THE  PEOPLE  ARE  USING  THEIR  NEW  POWER 

OF  NOMINATION  1 

Enough  direct-primary  elections  have  now  been  held  that  the  public 
m'ay  see  fairly  well  the  virtues  and  defects  of  this  newest  system  of 
political  preferment. 

The  direct-primaries  question  is  one  of  the  big  political  topics  before 
the  people  to-day.  The  country  at  large  is  interested  in  it  because  a 
score  or  more  of  states  have  already  j^ut  it  into  operation.  New  York 
is  interested  in  it  because  it  is  a  reform  which  may  come  in  this  state, 
possibly  very  soon.  Governor  Hughes  is  strongly  in  favor  of  it,  and  the 
whole  trend  of  political  thought  nowadays  is  toward  it. 

liriefly  told,  the  direct-primaries  system  is  one  by  which  the  power  of 
nominating  candidates  for  political  office  is  taken  from  the  bosses  and 
the  corporations  and  lodged  with  the  people.  It  is  provided  for  under 
state  law,  and  as  each  state  has  its  own  law,  there  is  a  slight  variation 
in  the  different  .systems.  The  feature  which  is  common  to  all  the  states, 
however,  is  that  the  old  party  convention  is  abolished  and  the  candidates 
arc  chosen  directly  by  the  voters,  who  go  to  the  polls  as  though  for  a 
regular  election. 

'J 'he  different  parties  vote  at  the  same  polling  place,  but  every  man  is 
required  to  declare  his  allegiance  on  entering  the  polls  and  to  vote  only 

1  From  New  York  Evening  Post,  1908. 


ELECTIONS  AND  NOMINATIONS  415 

on  his  own  party  ballot.  In  Illinois  last  week  the  Republican  ballots 
were  on  white  paper,  the  Democratic  on  pink,  the  IVohibitionist  on  blue, 
and  the  Socialist  on  salmon. 

Candidates  announce  their  aspirations  beforehand,  sometimes  by- 
advertising  in  the  newspapers.  If  they  expect  to  have  their  names 
printed  on  the  official  ballot,  they  are  compelled  to  file  notice  of  their 
candidacy  with  the  election  authorities.  They  then  throw  themselves 
into  the  campaign,  only  instead  of  its  being  Democrats  against  Repub- 
licans, it  is  Republicans  against  Republicans  and  Democrats  against 
Democrats. 

The  Republican  who  wins  and  the  Democrat  who  wins  at  the  prima- 
ries this  summer  are  pitted  against  each  other  in  the  election  which  takes 
place  in  the  fall. 

In  a  state  which  is  pronouncedly  of  one  political  complexion,  the 
primary  of  the  party  in  power  is  equivalent  to  an  election.  In  Georgia, 
for  instance,  the  man  named  at  the  Democratic  primaries  to  run  for 
governor  is  as  good  as  elected.  The  primaries  in  Georgia  took  place 
this  year  on  June  4,  and  "  Joe  "  Brown  defeated  the  present  governor, 
Hoke  Smith.  The  election  will  take  place  in  the  fall,  but  Mr.  Brown 
will  not  be  inaugurated  until  next  spring.  Thus  Georgia  has  the  peculiar 
anomaly  of  possessing  two  governors  for  a  period  nearly  a  year  in  length. 

Strongholds  of  Direct  Primaries 

The  South  and  the  Middle  West  are  the  strongholds  of  the  direct 
primaries.  The  whole  Mississippi  valley  has  embraced  them,  and  will 
never  go  back  to  the  old  system. 

Illinois,  Oregon,  Kansas,  Missouri,  and  Oklahoma  have  recently  tried 
state-wide  primaries  for  the  first  time.  Other  states  which  have  held 
primaries  within  the  year  are  Iowa,  Tennessee,  Arkansas,  Louisiana, 
Texas,  and  Georgia.    Wisconsin  and  Washington  are  to  hold  them  soon. 

Just  as  there  are  people  who  cry  out  against  our  own  Public-Ser\ace 
Commission  because  it  does  not  in  a  day  correct  all  the  abuses  which  it 
has  taken  astute  traction  men  twenty  years  to  build  up,  so  there  have 
been  plenty  of  people  after  the  primaries  to  declare  loudly  that  they  were 
a  failure,  and  that  the  entire  system  would  have  to  be  abolished.  On 
careful  analysis  of  the  outcry,  however,  it  is  pretty  clearly  established 
that  most  of  it  comes  from  the  politicians  and  party  leaders  who  have 
been  hurt.  This  is  one  of  the  greatest  possible  tributes  to  the  efficacy  of 
the  system.  "  I  never  heard  of  a  politician  who  was  fairly  beaten,"  re- 
marked a  shrewd  obser\'er  the  other  day,  "  who  did  n't  yell  out  that  he 
was  beaten  by  fraud." 

On  the  other  hand,  there  is  room  for  a  good  deal  of  severe  criticism 
of  the  system  from  its  friends.  No  new  institution  which  practically 
overturns  all  existing  precedent  can  be  made  perfect  in  one  year,  or  in 


4i6  AMERICAN  STATE  GOVERNMENT 

five.  However,  there  is  not  the  slightest  evidence  to  show  that  any  state 
will  permit  itself  to  go  back  to  the  old  system  of  boss-ridden  conven- 
tions. The  new  laws  will  simply  be  amended  and  improved  until  they 
are  perfect.  As  De  Tocqueville  said,  "  The  remedy  for  democracy  is 
more  democracy." 

Illinois  as  a  Model 

Illinois  was  generally  supposed  to  have  the  most  perfect  direct-prima- 
ries law  on  the  statute  books  anywhere.  Hence  the  result  there  was 
watched  with  interest.  Governor  Deneen,  who  obtained  the  passage  of 
the  law,  was  a  candidate  for  renomination  at  the  hands  of  the  Repub- 
licans ;  and  ex-Governor  Yates,  who  had  the  Republican  bosses,  the 
liquor  interests,  and  various  disreputable  cohorts  at  his  back,  was  oppos- 
ing him.  As  Illinois  is  Republican  by  300,000,  the  primary  would 
decide  the  governorship.  Deneen  and  Yates  both  made  whirlwind  cam- 
paigns, covering  the  state  from  Roscoe  to  Eg}-pt  in  special  trains  and 
automobiles,  till  the  enthusiasm  and  bitterness  of  the  campaign  appeared 
to  be  at  a  white  heat.  Two  other  contests  of  almost  equal  importance 
accompanied  the  campaign,  and  a  host  of  minor  nominations  were  to  be 
made.  What  was  the  surprise,  therefore,  when  it  became  apparent  from 
the  returns  that  nearly  half  the  voters  had  gone  off  golfing  or  fishing 
instead  of  casting  their  votes. 

This  was  an  almost  unbelievable  fact  that  nearly  50  per  cent  of  the 
voters  had  actually  thrown  away  an  opportunity  which  they  had  been 
fighting  for  before  their  legislature  for  years.  It  is  a  peculiarity  of  the 
human  species  that  he  will  come  to  a  white  heat  over  muckraking  stories, 
and  clamor  at  the  doors  of  his  legislature  until  he  gets  direct-primaries 
laws,  but  when  he  gets  a  chance  to  go  to  the  primaries  and  correct 
abuses  by  his  vote,  he  behaves  like  the  European  prince  who  made  a 
voyage  to  Norway  to  see  an  Arctic  phenomenon  which  occurred  only 
once  a  year,  and  who,  on  being  awakened  at  4  A.ftL  by  his  valet,  said, 
as  he  rolled  over :  "  I  '11  sleep  this  time.  We  '11  come  up  and  see  the 
sky  next  year." 

It  is,  then,  going  to  be  a  serious  question  how  to  make  sure  that  the 
public  will  come  to  the  primaries  and  not  abandon  them  to  tlie  bosses. 
It  is  believed,  however,  that  time  will  remedy  this.  One  of  the  greatest 
secondary  benefits  of  the  system  is  that  it  compels  the  candidates  to  get 
out  before  the  people ;  it  restores  the  old-fashioned  catch-as-catch-can 
style  of  political  campaigning,  and  it  stirs  u])  the  interest  of  the  people 
all  over  the  state.  In  Tennessee  ex-Senator  Oarmack  and  Governor 
Patterson  indulged  in  no  kss  than  fifty-two  joint  debates  and  drove 
almost  every  other  subject  out  of  the  Tennesseeans'  minds  for  a  period 
of  three  months,  in  their  campaign  for  the  governorship  nomination. 

United  States  Senator  "Jeff"  Davis  was  compelled  to  leave  the  ses- 
.sion  last  spring  and  go  on  the  stump  in  Arkansas,  where,  in  the  sound 


ELECTIONS  AND  NOMINATIONS  417 

defeat  which  was  administered  to  him  by  the  Arkansans,  the  last  vestige 
of  political  prestige  which  hung  about  his  person  was  torn  from  him. 
In  the  preparation  for  the  primaries  in  the  state  of  Washington,  the 
character  of  United  States  Senator  Levi  Ankeny  is  receiving  the  atten- 
tion of  the  spot  light  in  an  abundance  which  Mr.  Ankeny  does  not  at  all 
relish.  And  in  the  recent  fight  in  Kansas,  where  Bristow  and  Long 
waged  a  mighty  battle  for  the  senatorship,  with  the  Stubbs-Leland 
governorship  contest  as  an  extra  thriller,  the  protagonists  stumped  and 
debated  and  press-noticed  the  state  from  one  end  to  another,  until  there 
was  not  the  remotest  hamlet  nor  the  least  well-informed  old  lady  who 
did  not  know  the  entire  merits  of  the  situation. 

The  Successful  Trial  in  Kansas 

Governor  Hoch  was  too  busy  arranging  Chautauqua  engagements  to 
go  to  the  polls  and  vote,  but  otherwise  nearly  every  male  person  of  legal 
age  did  his  duty,  the  result  being  different  from  Illinois's  in  that  respect. 
There  was  every  reason  to  feel  optimistic  over  the  workings  of  the  new 
style  of  nominating,  as  exemplified  in  the  Kansas  performance,  and 
undoubtedly  the  sentiment  of  the  people  was  registered  with  accuracy. 
Senator  Long's  record  at  Washington  certainly  had  not  pleased  that 
radical  state.  He  was  too  tender  toward  the  railroads  and  the  privileged 
interests,  and  a  little  of  that  goes  a  long  way  (in  the  wrong  direction) 
with  the  Kansas  people.  After  the  returns  came  in  William  Allen  White 
wrote  in  the  Emporia  Gazette  : 

The  gentlemen's  agreement  is  now  a  thing  of  the  past.  The  people  will 
rule.  Yet  four  months  ago,  in  the  last  Republican  convention,  the  machine 
won,  and  Stubbs  and  Bristow  were  disgracefully  beaten.  If  they  were  can- 
didates to-day,  they  would  be  disgracefully  beaten  in  a  convention.  The  state 
convention  indorsed  Long  in  March.  If  it  met  under  old  conditions,  it  would 
indorse  him  to-day. 

He  had  the  most  splendid  organization  ever  manned  in  Kansas.  He  had 
all  the  campaign  fund  he  needed  to  spend.  He  had  men  to  run  at  his  beck 
and  call.  But  Bristow,  without  friends,  without  headquarters,  who  could  order 
no  one  around,  without  even  a  skeleton  organization,  won  this  fight.  He 
spent  less  on  his  whole  campaign  than  his  opponent  spent  on  postage.  The 
same  thing  that  is  true  of  Bristow  and  Long  is  true  in  a  degree  about  Stubbs 
and  Leland.  The  machine  played  politics.  They  tried  to  line  up  class  votes. 
They  endeavored  to  corral  the  labor  vote  as  such,  the  old-soldier  vote  as  such, 
the  negro  vote  as  such,  the  whisky  vote  as  such,  and  the  railroad  vote  as  such. 

A  Poor  Man's  Primary 

But  when  the  vote  was  counted,  every  railroad  town  in  Kansas  voted  for 
Bristow  and  most  of  them  voted  for  Stubbs.  In  Emporia,  where,  under  the 
old  system,  the  bosses  could  see  the  tickets  the  railroad  men  were  voting, 
the  railroad  men  always  lined  up  for  the  machine ;  but  under  the  primary 


41 8  AMERICAN  STATE  GOVERNMENT 

the  railroad  men  who  cheered  for  Long  at  the  Emporia  meeting  voted  and 
carried  their  ward  for  Bristow.  Not  a  dollar  was  spent  for  cigars,  nor  a  hack 
hired  in  this  town,  for  Stubbs  and  Bristow,  and  it  was  the  same  all  over  Kansas. 
It  was  a  poor  man's  primary.  The  machine  had  the  money,  but  it  did  not 
have  the  moral  sense  to  see  that  politics  does  n't  count  in  a  primary  box,  but, 
instead,  just  common,  ordinary  folks  get  their  views  in  without  reference  to 
class  or  clan. 

The  heavy  vote  polled  at  this  primary  proves  its  popularity  with  the  people. 
And  the  fact  that  the  people  voted  with  sense  and  justice  and  were  not  con- 
fused on  big  moral  issues  shows  that  Kansas  has  earned  her  right  to  political 
and  industrial  freedom.  The  primary  now  prevails  all  over  the  Mississippi 
valley,  and  it  will  stay  as  long  as  universal  suffrage.  It  is  a  step  in  the  politi- 
cal evolution  of  the  American  people.  It  puts  the  politician  and  the  public- 
ser\'ice  corporation  out  of  political  business.  Eventually  it  will  put  the  United 
States  Senate  and  the  American  courts  out  of  the  hands  of  the  law-defying 
wealth  and  into  the  hands  of  the  masses.  It  is  not  revolution.  It  is  evolu- 
tion. But  it  will  fail  if  selfishness  and  greed  and  partisan  bigotry  get  into  it. 
The  primary  will  succeed  only  as  men  vote  for  the  good  of  their  neighbors ; 
only  as  they  are  broad-minded,  self-sacrificing,  and  brave.  For  "  unless  the 
Lord  keepeth  the  city,  the  watcher  wakens  but  in  vain." 

The  Expense  Argument 

Automobiles,  special  trains,  hall  hire,  postage,  and  advertising,  with 
all  the  other  incidentals  of  a  furious  campaign,  are  expensive,  and  the 
argument  has  been  made  that  the  direct-primary  system  prevents  the 
poor  man  from  entering  the  race.  This  objection  ignores  the  fact  that 
the  old  system  also  prevented  the  poor  man  from  entering  the  race, 
unless  he  was  willing  to  have  his  expenses  paid  by  the  boss  and  be  sub- 
servient to  the  boss's  orders.  Furthermore,  the  objection  is  untrue. 
The  Chicago  papers  were  full  of  advertisements  carrying  portraits  and 
recommendations  of  different  candidates,  before  the  primaries,  but  it  is 
noticeable  now  that  very  few  of  those  who  had  their  pictures  in  the 
papers  succeeded  at  the  polls.  This  may  have  been  a  mere  coincidence, 
but  it  proves  that  a  man  can  be  elected  without  spending  money  in  that 
way.  When  Mr.  Bristow  announced  his  candidacy  in  Kansas,  number- 
less newspapers  throughout  the  state  wrote,  soliciting  his  advertisement, 
but  he  wrote  back  a  courteous  note  to  all  of  them,  saying  that  he  would 
like  to  spend  the  money  that  way  if  he  had  it,  but,  being  a  poor  man, 
he  could  not  afford  any  advertising,  and  must  refuse  them  all.  'I'his  did 
not  prevent  his  winning. 

One  very  .seri(nis  defect  is  that  no  law  yet  developed  prevents  Demo- 
crats from  voting  the  Republican  ballot,  and  vice  versa.  There  are 
theoretical  safeguards  against  this,  but  they  are  not  sufficient,  as  was 
demonstrated  in  the  Missouri  and  Illinois  primaries.  To  vole  in  Illinois, 
one  merely  has  to  be  a  registered  voter,  or  have  his  vote  sworn  in  if  he 
is  not  registered,  whereuixm  he  may  vote  the  ballot  of  the  party  to  which 


ELECTIONS  AND  NOMINATIONS  419 

he  belongs  provided,  (i)  he  has  not  signed  the  petition  of  a  candidate  of 
another  party  to  be  voted  on  at  the  primaiy ;  (2)  he  has  not  signed  a 
nominating  petition  for  an  independent  candidate  to  be  voted  for  on 
November  3  ;  and  (3)  he  has  not  voted  the  primary  ticket  of  any  other 
party  within  the  past  two  years.  To  make  the  restrictions  more  severe 
would  make  it  difficult  for  the  independent  voter  to  get  his  ballot  in. 
Hence  the  makers  of  the  primaries  law  are  between  Scylla  and  Charyb- 
dis.  This  is  evidently  the  greatest  problem  which  the  situation  presents 
at  present. 

Behavior  of  Democratic  Wards 

In  Chicago  it  was  astonishing,  not  to  say  amusing,  to  see  how  certain 
preponderatingly  Democratic  wards  cast  Republican  majorities  in  the 
primaries.  The  reason  for  this  was  not  difficult  to  see.  The  Democrats 
knew  that  if  the  best  Republican  candidates  were  nominated,  the  chance 
of  electing  Democrats  against  them  would  be  zero.  Hence  their  only 
chance  lay  in  going  to  the  polls  and  voting  as  Republicans  for  the  worst 
Republican  candidates.  To  make  the  illustration  concrete,  the  Democrats 
thought  that  if  the  Republican  Yates  could  be  nominated  (instead  of 
Deneen),  their  own  candidate  might  stand  a  chance  of  defeating  him  in 
the  election  next  fall.  Consequently  they  flocked  to  the  polls  and  voted 
the  white  ballot  instead  of  the  pink.  Their  own  nominee  turned  out  to 
be  ex-Vice  President  Adlai  E.  Stevenson,  who  might  conceivably  have 
beaten  Yates,  if  Yates  had  been  nominated ;  but  unfortunately  Deneen 
was  chosen  on  the  Republican  ticket  instead  of  Yates,  despite  all  their 
efforts. 

When  the  Chicago  newspaper  editors  examined  the  ward  tables  next 
day  they  began  to  exclaim,  "  What 's  become  of  the  Democratic  party  in 
Chicago  ?  "  If  in  our  famous  "  gas-house  district "  here  in  New  York, 
where  Charles  F.  Murphy's  followers  abound  in  the  proportion  of  three 
to  one,  there  should  be  a  primary  in  which  less  votes  were  cast  for  the 
Tammany  candidates  than  for  the  Citizens  Union,  the  situation  would 
be  analogous. 

Throughout  Chicago  the  Democratic  vote  on  the  governorship  totaled 
54,973,  —  this  in  a  city  where  Edward  F.  Dunne,  Democrat,  got  151,779 
votes  for  mayor  sixteen  months  ago. 

The  total  Republican  vote  was  134,911,  or  nearly  80,000  majority 
over  the  Democratic,  —  this  in  Chicago,  which  is  still  considered  a  nor- 
mally Democratic  city. 

In  the  ninth  ward,  a  Democratic  fortress,  the  entire  Democratic  vote 
was  only  952,  while  Yates  alone  on  the  Republican  ballot  got  2282. 
In  many  other  wards  the  same  thing  happened.  A  certain  personage 
at  Oyster  Bay  might  be  grieved  to  know  that  in  Chicago's  thirty-fourth 
ward  the  vote  was  119  larger  than  the  record-breaking  vote  given  to 
Roosevelt  in  1904. 


420 


AMERICAN   STATE  GOVERNMENT 


It  is  believed  that,  without  these  illegal  Democratic  votes,  Represent- 
ative Foss  would  have  been  nominated  over  Senator  Albert  J.  Hopkins 
for  the  United  States  Senate,  and  that  John  J.  Healy,  the  present  state's 
attorney  (district  attorney,  we  call  it  in  New  York)  of  Cook  County 
(Chicago)  would  have  been  renominated  over  Wayman,  who  led  by  a 
plurality  of  only  729.  There  is  talk  of  independent  candidacies  in  these 
two  contests. 

The  Senatorship  Problem 

Finally,  one  of  the  problems  which  is  most  perplexing  the  champions 
of  the  direct  primaries  is  that  which  has  to  do  with  the  nominating  of 
United  States  senators.  This  one  problem  has  made  more  trouble  than 
all  others  put  together,  but  it  seems  to  be  due  chiefly  to  a  certain  vague- 
ness on  the  part  of  the  statute,  which  allows  of  various  interpretations. 

In  Illinois  and  various  other  states  the  people's  selections  for  United 
States  senator  are  only  advisory.  As  the  choice  of  senators  comes  under 
the  federal  law,  it  cannot  be  usurped  by  state  law,  and  the  final  power 
to  elect  still  rests  with  the  legislatures.  Some  of  the  state  laws  get 
around  this,  however,  by  electing  legislatures  at  the  same  time,  and  re- 
quiring candidates  for  the  legislature  to  abide  by  the  will  of  the  people 
as  expressed  at  the  primaries. 

In  Oregon  the  people  are  anxiously  waiting  to  see  whether  the  Repub- 
lican legislature  will  fulfill  its  pledge  to  elect  Governor  Chamberlain,  who, 
though  a  Democrat,  was  chosen  at  the  primaries  to  succeed  Senator 
Fulton  in  the  United  States  Senate.  There  is  little  doubt  that  the  legis- 
lature will  be  true  to  its  promises,  but  the  contemplation  of  a  Demo- 
cratic senator  chosen  by  a  Republican  legislature  has  nearly  disrupted 
the  Republican  party  in  that  state  for  the  time  being.  In  the  neighbor- 
ing state  of  Washington,  Senator  Levi  Ankcny  wishes  to  succeed  him- 
self, but  stands  a  very  poor  chance  of  being  chosen  in  the  coming 
primaries.  He  is  causing  the  people  many  sleepless  nights  by  threat- 
ening to  be  a  candidate  before  the  legislature,  whether  he  is  chosen 
at  the  primaries  or  not.  Oregon  and  Washington  have  spilled  as 
much  ink  over  these  vexatious  possibilities  as  San  Francisco  has  over 
"  graft." 

Senator  Hopkins  received  a  plurality  in  Illinois,  but  Congressman 
Foss  says  that  he  will  be  a  candidate  before  the  legislature  on  the  ground 
that  he  carried  a  plurality  of  the  legislative  districts.  (Later  returns 
indicate  that  he  did  not.)  If  Foss  stays  in  the  fight,  so  also  will  ex- 
Senator  "  Billy"  Mason,  who  proved  a  close  third  in  the  primaries. 

Wisconsin,  which  holds  its  primaries  on  September  i,  has  a  scare 
on  its  hands  in  the  shape  of  Senator  Isaac  Stephenson.  "Uncle  Ike" 
was  elected  to  the  Senate  two  years  ago  to  fill  out  the  unexpired  term 
of  Senator  Sjiooner,  who  resigned.  I  le  was  elected  on  the  specific 
pledge  that  he  would  be  satisfied  with  the  short  term  and  not  run  again. 


ELECTIONS  AND  NOMINATIONS  42 1 

Now  that  the  time  has  come,  he  has  chosen  to  ignore  his  promise,  at 
the  expense  of  his  friendship  with  Senator  La  Follette,  and  has  entered 
the  race. 

SENATORIAL  DEADLOCKS^ 

From  1895  down  to  the  present  there  has  been  only  one  Congress 
in  which  the  full  membership  of  the  Senate  sat.  In  all  the  others  there 
were  one  or  more  vacancies,  due  to  the  failure  of  state  legislatures  to 
choose  senators. 

At  present  the  Senate's  membership  is  incomplete,  the  state  of  Rhode 
Island  having  failed,  after  an  all-winter  effort  of  its  legislature,  to  elect 
a  senator  in  place  of  George  Peabody  Wetmore.  There  was  a  full 
Senate  for  a  short  time  after  Delaware  had  elected  Colonel  Henry  A. 
Du  Pont ;  then,  with  the  expiration  of  Wetmore's  term  and  the  failure 
to  elect  in  Rhode  Island,  the  upper  house  returned  to  its  chronic 
condition  of  short-handedness. 

The  senatorial  deadlock  is  responsible  for  this  condition.  The  dead- 
lock is  a  matter  of  comparatively  recent  development.  There  were  occa- 
sional failures  of  state  legislatures  in  the  early  history  of  the  country  to 
elect  senators,  but  until  within  about  twenty-five  years  these  were  excep- 
tional. But  nowadays  seats  in  the  American  House  of  Lords  are  so 
highly  prized,  the  stake  is  so  immense,  and  political  feeling  runs  so  high 
over  them,  that  it  is  the  exception  to  pick  on  a  date  at  which  all  the 
seats  have  been  filled. 

The  problem  of  the  Senate  looms  larger  year  by  year  in  the  American 
system.  In  Great  Britain  there  is  solemn  talk  of  abolishing  their  House 
of  Lords.  That  cannot  be  done  in  America.  Nothing  short  of  revolu- 
tion would  accomplish  it.  The  complaint  against  the  Lords  —  in  both 
countries  —  is  that  they  are  not  sufficiently  responsive  and  responsible 
to  public  opinion. 

So  it  is  interesting  to  note  that  only  a  little  more  than  a  century  ago, 
when  the  Constitution  of  the  United  States  was  being  drafted,  there 
was  serious  support  for  the  proposal  to  have  the  President  name  the 
senators,  and  name  them  for  life.  That  was  based,  of  course,  on  the 
English  system,  where  the  peers  are  created  by  royal  mandate. 

In  a  century  the  Senate,  which  under  that  system  would  have  come 
to  be  a  mere  reflex  of  the  executive  will,  has  developed  so  far  in  the 
opposite  direction  that  it  is  now  esteemed  the  chief  barrier  to  the  exe- 
cution of  executive  designs.  Mr.  Cleveland  despised  it,  and  Mr.  Roosevelt 
simply  cannot  get  along  with  it.  But  otherwise  the  Senate  has  lived  up 
to  the  purpose  of  its  founders,  who  wanted  it  to  stand  between  the 
country  and  an  excess  of  democracy. 

De  Tocqueville,  a  French  writer  on  our  institutions,  said  that  "  the 
cure  for  the  evils  of  democracy  is  more  democracy."    That   theory  is 

1  From  the  New  York  Hcfald,  June  9,  1907.    Reprinted  by  permission. 


42  2  AMERICAN  STATE  GOVERNMENT 

pretty  widely  accepted  nowadays.  But  in  the  times  when  the  fathers  of 
constitutional  government  were  worrying  over  the  Constitution  which 
the  rest  of  us  have  worried  over  ever  since,  the  Frenchman's  notion 
had  not  sunk  in  very  deep  on  this  side  the  Atlantic.  The  great  fear 
was  of  too  much  democracy.  A  house  of  peers,  of  privilege,  of  aris- 
tocracy, of  heredity,  —  of  something  exclusive  and  aloof,  anyhow, — 
was  wanted  by  most  of  the  men  who  sat  in  the  Constitutional  Con- 
vention. Only  one  state,  Pennsylvania,  voted  for  popular  election  of 
senators,  and  that  state  was  dominated  in  doing  so  by  one  man,  James 
Wilson.  To-day  popular  election  of  senators  is  one  of  the  pressing  issues 
before  the  nation. 

Blockades  tie  up  States 

The  decision  to  have  senators  elected  by  the  state  legislatures  was  a 
compromise  between  popular  election,  which  meant  too  much  democ- 
racy, and  presidential  appointment,  which  meant  too  little.  Nobody 
dreamed  that  in  time  the  compromise  would  result  in  the  senators  con- 
trolling the  legislatures.  If  some  seer  could  have  arisen  to  tell  the  Con- 
stitutional Convention  that  this  system  would  bring  about  a  condition  in 
which  legislatures  would  be  completely  dominated  by  the  responsibility 
for  a  senator's  election,  they  would  have  laughed  at  him.  Yet  we  have 
seen  it  come  to  pass  that  the  whole  legislative  business  of  a  state  con- 
taining more  people  than  there  were  in  the  United  States  at  the  end  of 
the  Revolution  has  been  subordinated  and  forgotten  in  the  pressure  to 
control  the  senatorial  election.  The  senators,  who  were  expected  to  be 
the  creatures  of  the  legislatures,  have  come  to  be  their  masters. 

Originally  seats  in  the  House  of  Representatives  were  more  prized  by 
most  men  than  those  in  the  Senate.  The  full  significance  of  the  Senate's 
participation  in  the  executive  power,  of  its  control  over  patronage  and 
its  part  in  treaty  making,  were  not  appreciated.  But  to-day  the  people 
of  real  consequence  in  this  government  are  the  senators.  They  make 
terms  with  the  executive,  they  control  the  patronage,  and  they  head  the 
delegations  which  nominate  presidents  in  national  conventions,  and,  per- 
haps more  than  all,  they  actually  control  legislation  in  Washington,  par- 
ticularly all  that  bears  on  production  and  exchange, —  a  power  that 
cannot  be  overstated  in  terms  of  importance  and  range. 

With  this  tremendous  growth  of  the  prestige  and  power  of  the  Senate 
has  come  the  senatorial  deadlock,  the  condition  in  which  pressure  upon 
the  state  legislature  becomes  so  great  as  to  paralyze  it  and  prevent  its 
performance  of  the  function  of  senatorial  election. 

Since  1891  there  have  been  no  less  than  forty-six  deadlocks  in  state 
legislatures.  In  thirteen  of  these  cases  the  legislative  session,  after  many 
weeks  of  effort,  has  adjourned  without  an  election.  Only  within  a  short 
time  the  legislature  of  Kiiode  Island  has  given  up  in  despair,  unable  to 
choose  a  senator.    The  Wisconsin  legislature  has  just  chosen  a  senator 


ELECTIONS  AND  NOMINATIONS 


423 


after  a  contest  which  really  began  on  March  3.  The  remarkable  experi- 
ences of  Delaware,  Montana,  Pennsylvania,  and  Nebraska,  as  well  as 
other  states,  hardly  need  to  be  recounted  to  suggest  how  entirely  the 
business  of  choosing  senators  has  come  to  be  the  overshadowing,  all- 
engrossing  function  of  legislatures.  Everything  else  has  been  traded  off, 
neglected,  or  forgotten,  in  the  eagerness  to  devote  attention  to  this.  Not 
only  have  nearly  one  third  of  these  deadlocks  resulted  in  failure  to  elect 
at  all,  but  about  as  many  more  have  ended  in  the  selection  of  men 
utterly  unknown  as  senatorial  timber,  —  men  agreed  on  as  compromises 
between  bitterly  hostile  factions,  whose  availability  too  often  consisted 
in  the  fact  that  they  were  unknown,  untried,  untested,  unmeasured,  had 
not  been  far  enough  involved  in  the  affairs  of  their  communities  even  to 
have  become  identified  with  their  political  divisions  !  Here  is  a  list  of  the 
cases  of  deadlocked  legislatures  since  189 1,  which  is  given  by  Dr.  George 
H.  Haynes  in  "The  Election  of  Senators,"  published  recently.  Dr. 
Haynes  does  not  pretend  that  it  is  a  fair  representation  of  this  aspect. 

Here  are  the  Deadlocks 

It  is  only  a  list  of  deadlocks  in  legislatures.  It  takes  no  account  of 
the  scores  of  contests  in  political  conventions  and  caucuses  in  which 
senatorships  have  been  at  stake,  but  from  the  legislative  records  alone 
this  list  is  made  up  : 


Year 


1891 
1893 

1895 

1896 
1897 


State 


Florida  .  .  . 
North  Dakota 
South  Dakota 
Montana  .  . 
Nebraska  .  . 
North  Dakota 
Washington  . 
Wyoming  .  . 
Delaware  .  . 
Idaho  .  .  .  . 
Oregon  .  .  . 
Washington  . 
Kentucky  .  . 
Louisiana  .  . 
Maryland  .  . 
Florida  .  .  . 
Idaho  .  .  .  . 
Kentucky  .  . 
Oregon  .  .  . 
South  Dakota 
Utah  .  .  .  . 
Washington     . 


Days 
Dead- 
locked 


35 

3 

27 

50 
21 

33 

51 

51 
[14 

51 
32 

9 
58 

9 


15 
36 

53 
29 


Senator  Chosen 


Wilkinson  Call 
H.  C.  Hansbrough 
J.  H.  Kyle 
No  election 
W.  V.  Allen 
W.  N.  Roach 
No  election 
No  election 
No  election 
G.  L.  Shoup 
G.  W.  McBride 
J.  L.  Wilson 
No  election 
S.  D.  McEnery 
G.  L.  Wellington 
S.  R.  Mallory 
Henry  Heitfelt 
W.  J.  Deboe 
No  election 
J.  H.  Kyle 
J.  L.  Rawlins 
George  Turner 


424 


AMERICAN  STATE  GOVERNMENT 


Year 


1898 
1899 


State 


1 90 1 


1903 


1904 
1905 


Maryland     .  . 

Delaware     .  . 

Montana      .  . 

Nebraska     .  . 

Pennsylvania  . 
Utah    .... 

Wisconsin  .  . 

Delaware     .  . 

Delaware     .  . 

Montana      .  . 

Nebraska     .  . 

Nebraska     .  . 

Oregon    .    .  . 

Delaware     .  . 

Delaware     .  . 
North  Carolina 

Oregon    .    .  . 

Washington  . 

Maryland     .  . 

Delaware     .  . 

Missouri      .  . 


Da-iS 

Dead- 
locked 


7 
64 

17 

50 
92 

52 
8 

52 
52 
51 
7- 
72 

41 


9 
16 
80 
60 


Senator  Chosen 


L.  E.  McComas 
No  election 
W.  A.  Clark 
M.  L.  Haj'ward 
No  election 
No  election 
J.  V.  Quarles 
No  election 
No  election 
Paris  Gibson 
C.  H.  Dietrich 
J.  H.  Millard 
J.  n.  Mitchell 
J.  Frank  Allee 
L.  H.  Ball 
L.  S.  Overman 
C.  W.  Fulton 
Levi  Ankeny 
Isidor  Rayner 
No  election 
William  Warner 


Of  the  famous  deadlocks  the  series  in  Delaware  incident  to  the  deter- 
mined effort  of  J.  Edward  Addicks  to  break  into  the  Senate  was  easily 
the  most  famous.  It  may  not  be  inappropriate  to  set  down  here  an 
accurate  outline  of  this  contest,  which  has  never  before  been  printed. 
Addicks  began  by  controlling  four  or  five  members  of  the  1S95  legisla- 
ture, when  lliggins  was  a  candidate.  Addicks  finally  agreed  that  on  the 
last  day  he  would  vote  his  people  for  Dr.  Burton  —  now  a  member  of 
Congress  —  if  Higgins  would  do  the  same  and  elect  him  senator.  Addicks 
carried -out  his  agreement,  but  Higgins  failed,  and  voted  his  men  for 
Du  Pont,  leaving  the  agreement  a  failure  and  the  state  a  vacancy. 

After  that  Addicks  worked  incessantly  and  built  u])  a  machine  in  the 
state.  There  is  no  doubt  that  he  spent  millions  on  his  ambition  to  be 
senator,  —  how  many  is  only  subject  for  conjecture.  At  any  rate,  when 
the  1896  campaign  was  coming  on,  he,  in  control  of  the  state,  had  a 
deal  with  Quay,  Reed,  and  the  other  anti-McKinley  people,  under  which 
he  took  an  uncontested  delegation  to  St.  Louis  to  vote  with  the  anti- 
McKinley  forces.  The  contest  was  organized  after  arrival  there,  Higgins 
protesting  the  Addicks  delegation.  The  Hanna-McKinley  people,  in 
complete  control,  offered  first  to  seat  the  Addicks  delegation  if  it  would 
split  its  vote.  Addicks,  who  was  for  William  B.  Allison  for  president, 
refused,  and  his  delegation  was  rejected.  Four  years  afterward,  at 
I'hiladelphia,  tlie  Iowa  delegation  took  a  leading  part  in  seating  another 
Addicks  delegation,  simply  as  a  means  of  paying  back  the  loyalty  of 
Addicks  to  Allison. 


ELECTIONS  AND  NOMINATIONS  425 

At  the  1899  senatorial  election  the  Higgins  people  refused  to  enter  a 
caucus  and  there  never  was  a  chance  of  electing  a  senator.  At  the  third 
deadlocked  session  the  Addicks  and  Du  Pont  people  agreed  to  elect 
a  senator,  —  Senator  Dick,  of  Ohio,  as  emissary  from  Mark  Hanna, 
arranging  the  deal.  As  a  result  Du  Pont  and  Addicks  gave  up  their  per- 
sonal ambitions  and  Allee  and  Ball  were  elected.  At  the  fourth  encounter 
Roosevelt  politics  entered  Delaware  for  the  first  time.  Allee  had  become 
a  Roosevelt  adherent,  —  Roosevelt  now  being  president,  —  and  through 
the  White  House  influence  was  induced  to  cut  Addicks  and  make  a  deal 
with  Du  Pont.  Under  this  deal  Du  Pont  agreed  to  take  the  senatorship  in 
succession  to  Ball  and  then  turn  in  with  all  his  influence  and  help  reelect 
Allee.  It  was  carried  out  to  the  extent  of  electing  Du  Pont ;  but  being 
once  elected,  Du  Pont  betrayed  Allee,  just  as  Allee  had  betrayed  Addicks. 
Du  Pont  not  only  wanted  to  be  senator,  but  he  wanted  to  be  the  senior 
senator,  —  the  real  boss.  So  he  refused  when  the  time  came  to  support 
Allee ;  he  threw  his  strength  to  Harry  A.  Richardson,  elected  him,  and 
left  Allee  out  in  the  cold. 

And  thereby  hangs  the  tale.  Allee  was  very,  very  sore.  He  was  also 
very  close  to  the  White  House.  During  his  relations  with  the  Du  Ponts 
he  had  learned  the  secrets  of  the  Powder  Trust.  After  he  had  been  shut 
out  by  the  Powder  Trust's  senator  he  decided  to  explode  that  particular 
trust.  So  he  went  to  the  White  House,  told  what  he  knew  about  the 
powder  combine,  and  forthwith  there  was  announcement  that  the  powder 
octopus  would  be  prosecuted.  The  attorney-general  is  now  busily  on  its 
trail  and  this  is  the  real  story  of  the  case.  Everybody  in  the  senatorial 
"  family  "  knows  it.  The  senatorial  "  family"  is  the  group  of  elder  states- 
men who  are  custodians  of  the  traditions,  the  conscience,  and  the  manners 
of  the  upper  chamber.  The  "family"  is  the  most  select  and  exclusive 
thing  in  America. 

There  have  been  at  least  two  cases  in  recent  years  of  men  getting  a 
clear  majority  of  the  votes  in  a  legislature  and  still  not  being  elected.  In 
1895,  in  Oregon,  Senator  Dolph  got  the  caucus  nomination,  and  in  the 
separate  conventions  of  the  two  Houses  of  the  legislature  was  elected. 
But  before  the  joint  convention  on  the  next  day  enough  votes  were  taken 
away  from  him  to  prevent  his  getting  a  majority  in  the  joint  convention, 
and  he  was  never  again  so  near  election.  In  the  end  McBride  was  elected. 
That  deal  was  engineered  from  beginning  to  end  by  Fred  Dubois,  who 
on  March  4  retired  as  senator  from  Idaho.  Dubois  was  a  representative 
of  the  silver  wing  of  the  party,  which  suspected  Dolph  of  not  being 
firmly  devoted  to  silver's  cause.  Later  Dubois  himself  "  flopped "  on 
this  issue  and  was  elected  senator  a  second  time  in  his  own  state  as 
a  Democrat. 

The  Missouri  case  of  1905  was  similar  and  is  better  recollected.  Neid- 
ringhaus,  chairman  of  the  Republican  State  Committee,  received  a 
majority  of  the  votes  of  each  House  on  the  first  day  of  balloting,  and  that 


426  AMERICAN  STATE  GOVERNMENT 

night  received  congratulations  from  all  over  America,  including  one  from 
the  President.  But  next  day  in  joint  convention  he  failed  to  connect  with 
the  same  support,  and  within  three  weeks  he  was  withdrawn  from  the 
fight.  A  scandal  about  his  collection  of  funds  from  St.  Louis  brewers 
during  the  preceding  campaign  was  his  undoing. 

One  of  the  most  famous  deadlocks  was  that  of  1899  in  Pennsylvania, 
when  Quay  failed  of  election  and  the  legislature  adjourned  without  action. 
The  state's  governor  afterward  appointed  Quay  to  fill  the  vacancy.  When 
the  question  of  accepting  his  credentials  came  up  in  the  Senate  a  number 
of  senators  voted  to  admit  him,  although  explaining  that  they  did  not 
believe  it  was  constitutional.  Quay  was  personally  very  popular  in  the 
body,  and  this  fact  was  frankly  given  as  the  reason  why  several  voted  to 
admit  him.  The  decision  rejecting  him  was  made  by  a  majority  of  one 
vote,  which  Hanna  cast.  Hanna  had  never  forgiven  Quay  for  his  ac- 
tivity against  McKinley.  Afterward  Hanna  himself  stood  at  the  bar  of 
the  Senate,  charged  with  bribery  in  getting  his  election  in  Ohio,  and  Quay 
voted  to  seat  him.  Indeed,  in  that  fight  for  control  in  Ohio,  Quay  was 
perhaps  responsible  for  Hanna's  victory,  for  he  "  fixed  "  a  member  of 
the  legislature  who  had  once  lived  in  Pennsylvania  and  been  a  member 
of  the  Quay  machine.  This  man  went  to  Quay  to  ask  his  advice  and 
Quay  told  him  to  support  Hanna.  But  though  he  stood  by  Hanna  at 
that  time.  Quay  opposed  him  in  many  instances,  especially  the  statehood 
matter,  and  defeated  him  more  than  once. 

Montana's  senatorial  deadlocks,  like  those  of  Delaware,  have  centered 
around  the  ambition  of  a  rich  man  to  be  a  senator.  The  Daly-Clark  feud 
was  at  the  bottom,  with  the  possession  of  the  senatorship  only  an  inci- 
dent and  the  control  of  the  great  Anaconda  Mine  as  an  even  greater  item. 

When  Compromises  Come 

The  senatorial  deadlocks  have  often  resulted  in  compromises  which 
sent  to  the  Senate  unknown  and  inexperienced  men.  Thus  in  1901  the 
leading  candidates  for  the  Senate  in  Nebraska  were  Edward  Rosewater 
and  David  E.  Thompson,  now  ambassador  to  Brazil.  The  Republican 
caucus  made  the  remarkable  rule  that  the  nominees  must  have  a  majority 
of  the  entire  legislature  in  order  to  be  nominated,  —  that  is,  of  the  eighty- 
six  Republicans  in  the  caucus,  seventy-four  must  be  for  the  nominee.  This 
made  an  almost  impossible  combination,  and  Hanna,  then  the  Republican 
national  chairman,  sent  emissaries  repeatedly  to  Lincoln  in  the  effort  to 
have  it  changed.  Thompson  and  Rosewater  were  the  organization  candi- 
dates, state  and  national.  But  though  both  came  within  feeling  distance, 
neither  was  ever  nominated.  On  the  niglit  before  the  last  day  of  the 
session,  in  a  perfect  riot,  Charles  H.  Dietrich  and  J.  H.  Millard,  both 
unknown  to  public  experience,  were  nominated,  and  on  the  last  day 
they  were  elected  senators.    As  has  commonly  been  true  of  men  thus 


ELECTIONS  AND  NOMINATIONS  427 

nominated  by  accident,  they  were  not  equipped  for  such  careers,  and 
neither  made  a  happy  fit  in  the  position. 

It  would  be  impossible  to  make  an  estimate  of  the  money  that  sena- 
torial deadlocks  have  cost.  Clark  and  Addicks  doubtless  spent  more 
money  on  their  senatorial  ambitions  than  any  other  men.  Quay  spent  for- 
tunes, but  he  managed  to  have  "plum  trees  "  handy  to  shake  at  the  right 
moment.  The  Camerons,  father  and  son,  spent  great  sums  on  politics, 
and  Hanna  was  accused  by  the  most  direct  testimony  of  bribery.  Last 
winter  there  was  a  great  flurry  over  charges  that  Simon  Guggenheim, 
just  elected  senator  from  Colorado,  had  frankly  admitted  that  he  supposed 
his  money  got  him  his  election.  There  is  a  long  list  of  men  in  the  Senate 
—  many  of  them  in  no  wise  discreditable  to  the  body,  either  —  who  could 
not  possibly  have  been  there  but  for  their  wealth,  and  a  still  longer  list 
of  those  who  could  not  be  there  but  for  the  wealth  behind  them.  The 
expenditures,  however,  by  a  senatorial  candidate  to  secure  election  are 
generally  insignificant  compared  to  the  immense  cost  of  a  deadlock  to 
a  state,  which  pays  all  the  bills  for  the  legislature,  its  employees,  salaries, 
printing,  and  incidentals,  while  it  is  worrying  over  a  deadlock.  As  a  rule, 
when  there  is  a  senatorial  deadlock  on,  it  gets  all  the  attention ;  other 
business  is  quite  incidental.  On  an  average,  state  by  state,  it  probably 
costs  $5000  a  day  to  keep  a  legislature  in  session;  that  is,  every  day  of 
the  contest  has  cost  a  year's  salary  of  the  senator  who  was  not  being 
elected.  It  is  safe  to  say  that  the  states  pay  a  good  deal  more  money  for 
the  election  of  their  senators  than  the  United  States  afterwards  pays  the 
senators  in  salaries,  —  probably  several  times  as  much. 

There  is,  of  course,  insistence  in  many  quarters  that  the  popular 
election  of  senators  would  remedy  all  of  this.  Perhaps  it  would,  but  it 
is  farther  away  than  ever  before.  That  is  the  cold  fact.  Why,  it  may  be 
asked,  has  there  not  been  a  determined,  nation-wide  movement  to  bring 
about  popular  elections  ?    Are  not  most  people  in  favor  of  the  change  ? 

Probably  all  this  is  true,  but  in  recent  years  there  has  been  experience 
with  something  that  approximates  closely  to  popular  election  of  senators. 
This  is  the  nomination  of  senatorial  candidates,  in  the  southern  states,  by 
direct  popular  vote  in  a  state-wide  primary.  The  South  being  overwhelm- 
ingly Democratic,  the  only  real  contests  there  are  in  the  Democratic  pri- 
maries. So  the  senators  come  nearer  to  representing  an  expression  of 
popular  wish  than  they  possibly  could  under  another  system. 

Under  this  system  of  popular  nomination  by  direct  vote  the  South  has 
sent  to  the  Senate  such  men  as  Clark  and  Jefferson  Davis,  of  Arkansas, 
and  has  retired  such  men  as  James  K.  Jones  and  General  Berry.  It 
has  elected  Beckham  and  Paynter,  in  Kentucky,  over  Blackburn  and 
McCrary.  It  has  sent  up  Overman  and  Simmons  from  North  Carolina, 
Clay  from  Georgia,  and  others  of  like  character.  Now  these  may  be  good 
senators,  but  they  have  not  impressed  the  Senate  favorably.  That  is  the 
cold,  uncomfortable  truth.    The  elder  statesmen  say  that  the  "  popular  " 


428  AMERICAN  STATE  GOVERNMENT 

senator  is  so  eternally  busy  looking  after  his  popularity  —  keeping  in 
touch  with  his  people  —  that  he  has  no  time  for  the  business  of  legisla- 
tion. They  do  not  like  the  results  of  popular  election,  so  far  as  they  have 
studied  them  in  these  instances. 

There  is  no  very  deep-seated  antagonism  to  popular  election  in  the 
Senate  aside  from  this  view.  The  notion  that  senators  oppose  popular 
elections  because  they  are  fearful  of  losing  their  own  skins  is  mainly 
buncombe.  The  senator  who  is  already  in  would,  on  the  average,  have 
a  better  chance  in  an  election  than  before  a  legislature,  because  he  would 
have  the  advantage  of  prestige  and  acquaintance.  It  is  not  so  much 
selfishness  as  an  honest  belief  that  the  plan  would  not  give  the  Senate 
the  best  of  men  that  keeps  the  Senate  from  adopting  the  popular  amend- 
ment resolutions. 

The  argument  may  not  be  very  logical,  but  it  ser\'es  the  purpose  of 
the  senators.  An  analysis  of  the  Senate's  membership  recently  indicated 
that  about  one  third  were  utter  accidents  and  another  third  either  rich 
men  or  accepted  representatives  of  wealth.  But  of  the  "  accidents  "  a 
number  were  rated  as  most  useful  and  effective  senators,  while  of  the 
wealthy  men  the  worst  that  could  be  said  in  half  the  cases  or  more  was 
that  they  were  wealthy.  Under  either  rule,  in  short,  of  legislative  or  of 
popular  election  there  will  come  good  men  and  poor  ones.  The  worst 
thing  about  legislative  election  is  its  demoralizing  influence  on  the  legis- 
latures. The  state  all  too  often  gets  nothing  out  of  a  long  and  expensive 
session  of  its  legislature,  simply  because  the  senatorial  deadlock  prevents 
the  body  making  itself  useful. 

GOVERNOR   FOLK  ON   BRIBERY   LAWS  ^ 

State  of  Missouri,  Office  of  the  Governor 

Jefferson  City,  March  9,  1905 
To  the  Senate  : 

The  antibribcry  bill  now  pending  before  you  is  of  such  importance  to 
the  public  welfare  that  I  feel  I  should  be  derelict  in  my  duty,  were  I  not 
to  call  your  attention  especially  to  it  and  give  you  my  reasons  for  recom- 
mending its  passage. 

Tliis  bill,  in  a  different  form,  has  been  considered  by  you  heretofore, 
but  failed  to  receive  a  sufficient  number  of  votes  to  pass.  Without  criti- 
cizing those  who  opposed  it,  and  without  questioning  their  motives  in  the 
least,  I  cannot  but  believe  the  purpose  of  the  measure  was  not  fully  under- 
stood by  some  of  those  who  voted  against  it.  In  order  that  you  may  be 
thoroughly  advised  in  the  premises,  and  to  give  you  such  assistance  in 
arriving  at  a  just  conclusion  as  I  may  be  able  to,  this  message  is  sent  you. 

This  bill  compels  witnesses  to  bribery  transactions  to  testify,  and 
exempts  them  from  prosecution  by  reason  of  any  matter  arising  directly 

1  From  special  message,  1905. 


ELECTIONS  AND  NOMINATIONS  429 

or  indirectly  out  of  their  testimony.  It  has  been  claimed  that  the  measure 
conflicts  with  the  federal  and  state  Bill  of  Rights,  providing  that  no  person 
shall  be  compelled  to  testify  against  himself  in  a  criminal  case.  The 
attorney-general,  in  an  able  and  clear  opinion,  now  before  you,  holds  there 
is  no  such  conflict.  This  constitutional  provision  has  been  repeatedly  con- 
strued, both  by  our  state  courts  and  the  federal  courts,  to  mean  that  no 
person  shall  be  compelled  to  testify  as  to  any  matter  for  which  he  may  be 
prosecuted  on  a  criminal  charge.  If,  therefore,  the  statute  exempts  the 
witness  so  testifying  from  prosecution,  it  accords  him  ever^^  right  the  Con- 
stitution gives.  No  man  has  a  constitutional  right  to  take  bribes  or  to 
commit  any  other  crime.  The  only  right  conferred  in  this  respect  by  the 
Constitution  is  that  one  shall  not  be  compelled  to  furnish  evidence  to  con- 
vict himself,  or  that  may  be  the  basis  of  a  criminal  prosecution  against 
himself.  As  the  proposed  statute  makes  it  so  that  any  person  by  the  act 
of  testifying  secures  amnesty  or  pardon,  it  is  clear  that  the  constitutional 
guaranty  is  fully  satisfied. 

Again,  it  is  insisted  that  although  the  person  testifying  as  to  his  knowl- 
edge of  bribery  cannot  be  prosecuted  criminally  under  this  act,  he  is 
forced  to  expose  his  own  infamous  conduct,  and  that  it  would  not  be 
just  to  thus  degrade  him.  The  Constitution  never  intended  to  protect  a 
man  who  commits  a  crime  from  disgrace,  but  only  from  punishment  by 
reason  of  his  own  testimony.  One  who  thinks  so  little  of  his  reputation 
as  to  give  or  take  bribes  is  not  in  a  position  to  complain  because  the  law 
compels  him,  in  the  interest  of  public  justice,  to  tell  about  it.  The  man 
who  has  not  given  or  taken  bribes  cannot  be  affected  by  the  act  at  all, 
and  the  man  who  has  done  so  has  no  right  to  ask  that  the  law  protect  his 
reputation.  The  state  has  rights  as  well  as  those  who  give  and  take  bribes, 
and  the  rights  of  the  state  are  to  have  corruption  exposed  and  prosecuted 
where  possible.  This  right  of  the  state  is  limited  by  the  right  of  the 
criminal  not  to  be  prosecuted  upon  any  matter  arising  directly  or  indirectly 
out  of  his  testimony. 

The  proposed  act  is  not  revolutionary  or  radical.  It  follows  precedents, 
in  this  and  other  states,  of  long  standing.  For  many  years  Missouri  has 
had  a  statute  on  the  books,  now  Section  2206,  Revised  Statutes,  1899, 
compelling  witnesses  in  gambling  matters  to  testify,  and  providing  that 
their  testimony  shall  in  no  case  be  used  against  them.  This  statute,  in 
ex  parte  Buskett,  106  Mo.,  was  held  not  to  conflict  with  the  constitutional 
provision,  that  no  person  shall  be  compelled  to  testify  against  himself,  and 
that  the  protection  given  by  the  statute  to  the  witness  against  prosecution 
sufficiently  answered  the  constitutional  limitation.  The  statute  was  again 
before  our  supreme  court  in  ex  parte  Carter,  166  Mo.  604,  where  it 
was  held  invalid,  because  the  protection  afforded  the  witness  by  the  statute 
against  prosecution  was  not  coextensive  with  that  intended  to  be  furnished 
by  the  Constitution.  It  is  clearly  implied  in  this  case,  however,  that  if  the 
protection  from  prosecution  had  been  broad  enough,  there  could  have  been 


430  AMERICAN  STATE  GOVERNMENT 

no  constitutional  objection  to  the  act.  The  Interstate  Commerce  Law, 
enacted  by  Congress,  compels  witnesses  to  testify  before  the  Interstate 
Commerce  Commission,  affording  them  the  same  protection  from  prose- 
cution by  reason  of  their  testimony  as  the  proposed  bribery  law.  The 
United  States  Supreme  Court,  in  Brown  7's.  Walker,  i6i  U.  S.  591,  held 
that  the  act  did  not  conflict  with  the  Bill  of  Rights,  and  that  a  witness 
could  be  compelled  to  testify  as  to  any  matter,  even  though  it  involved 
a  crime  upon  his  own  part,  as  the  act  afforded  him  absolute  immunity 
from  prosecution. 

Many  states  have  statutes  compelling  witnesses  to  gambling  transactions 
to  testify,  giving  them  exemption  by  reason  of  such  testimony,  and  such 
acts  have  been  uniformly  upheld  by  the  courts.  So  the  act  is  in  thorough 
accord  with  well-established  precedents. 

It  has  also  been  urged  against  the  bill  that  it  will  compel  either  the 
giver  or  taker  of  bribes  to  turn  state's  evidence.  The  bill  is  intended  to 
accomplish  this  veiy  thing.  If  there  is  no  informer  in  bribery,  there  can 
be  no  exposure  or  prosecution  of  briber)'',  for  outsiders  cannot,  from  the 
nature  of  the  offense,  know  anything  about  it.  While  no  one  can  admire 
an  informer,  he  is  more  to  be  credited  for  telling  the  truth  as  to  corrup- 
tion than  for  concealing  it.  His  condemnation  should  result  from  the 
crime  committed  and  not  because  he  becomes  a  state's  witness.  To  a 
considerable  extent  the  prevalence  of  bribery  in  this  country  is  due  to  the 
imperfect  and  insufficient  means  provided  by  law  for  its  detection.  Such 
provisions  as  have  heretofore  been  enacted  have  for  their  chief  object  the 
punishment  of  bribery.  But  the  boodler  must  be  caught  before  he  can 
be  punished.  He  cannot  be  detected  unless  some  other  boodler  turns 
state's  evidence.  To  argue  against  the  practice  of  having  some  one  turn 
state's  evidence  is  to  argue  against  the  exposure  of  corruption,  for  there 
is  no  other  way  to  do  it. 

The  law  is  strong  enough,  so  far  as  punishment  for  bribery  is  concerned 
after  it  is  detected  ;  but  the  law,  as  it  is  now,  is  infirm  and  halting  when 
it  comes  to  securing  testimony  establishing  bribery.  The  first  requisite 
is  to  discover  the  evidence  necessary  to  prove  the  facts  constituting  the 
offense.  To  this  end  the  law  should  compel  bribe  givers  and  takers  to 
tell  the  truth  when  called  upon,  and  not-  allow  one  to  shield  the  other 
under  a  plea  of  constitutional  privik'ge  personal  to  himself.  Not  only 
that,  but  the  law  should  hold  out  an  incentive  in  the  way  of  immunity  to 
induce  either  the  giver  or  the  taker  of  bribes  to  make  a  complete  dis- 
closure of  all  the  circumstances  pertaining  to  the  offense.  It  would  be 
well  to  punish  all,  but  as  that  is  manifestly  impossible,  it  is  far  better  that 
all  should  be  exposed  and  some  ])unishe(l  than  the  facts  never  to  be 
known  at  all. 

I  regard  this  as  one  of  the  most  imjiortant  measures  that  has  been 
presented  to  this  general  assembly.  It  is  a  most  necessary  weapon  for 
the  state  in  the  war  against  bribery.   With  it  upon  the  statute  books  I  do 


ELECTIONS  AND  NOMINATIONS  431 

not  believe  that  any  will  be  so  bold  as  to  give  or  take  bribes,  for  all  will 
know  that  either  party  may  secure  immunity  from  prosecution  by  giving 
evidence  of  the  transaction.  Bribery,  by  reason  of  the  secrecy  with  which 
it  is  done,  and  the  fact  that  all  the  parties  to  it  are  equally  guilty,  has 
always  been  the  hardest  of  crimes  to  prove.  When  one  man  robs  another 
the  robber  is  guilty,  the  robbed  innocent ;  when  one  man  assaults  another 
the  person  making  the  assault  is  guilty,  the  person  upon  whom  the  assault 
is  made  is  innocent.  In  such  cases  testimony  can  easily  be  secured  to 
enforce  the  law.  In  bribery,  however,  the  man  who  gives  the  bribe  is 
guilty,  and  the  man  who  takes  the  bribe  is  guilty.  This  fact  has  always 
been  a  barrier  to  justice  and  a  protection  to  the  offenders,  as  one  could 
not  expose  the  other  without  incriminating  himself.  For  many  years  the 
necessity  of  some  means  of  facilitating  the  procurement  of  evidence  in 
bribery  cases  has  been  recognized.  Some  have  argued  that  the  bribe 
taker  alone  should  be  guilty,  and  that  this  would  prevent  the  crime,  as 
no  one  would  take  a  bribe,  knowing  that  he  was  committing  a  felony  by 
so  doing,  and  that  the  person  giving  it  was  free  to  disclose  him.  Others 
have  insisted  that  the  bribe  giver  alone  should  be  guilty.  The  object 
sought  by  these  various  suggestions  was  to  have  only  one  of  the  parties 
guilty,  so  the  state  could  secure  the  evidence  of  the  other.  The  proposed 
act  accomplishes  the  purpose  intended  by  these  suggestions  much  better, 
by  allowing  either  side  to  testify  and  giving  immunity  to  the  person  who 
does  testify. 

Until  the  prosecutions  were  commenced  in  Missouri,  some  three  years 
ago,  there  were  only  about  thirty-four  cases  of  bribery  recorded  in  the 
books  in  the  preceding  hundred  years  of  our  country's  history.  This  was 
not  because  the  crime  was  uncommon,  but  on  account  of  the  difficulty 
in  securing  testimony.  In  the  Missouri  cases  the  policy  was  adopted  of 
allowing  either  side  to  testify  without  being  prosecuted.  It  was  an  inno- 
vation then,  but  it  has  since  been  followed  all  over  the  country,  and  the 
result  has  been  that  there  have  been  more  bribery  prosecutions  within 
the  past  three  years  than  in  the  century  preceding.  It  is  my  belief  that 
the  proposed  statute,  if  enacted,  would  make  bribery  so  dangerous  that 
very  few  would  attempt  to  practice  it.  While  under  it  all  cannot  be 
punished,  yet  all  can  be  exposed.  And  after  all,  in  the  cure  of  corruption 
exposure  is  the  main  thing.  While  the  punishment  of  the  guilty  is  desired, 
it  is  far  better  to  have  exposure  without  punishment  than  punishment 
without  exposure,  if  such  a  thing  were  possible.  The  result  of  a  crusade 
against  corruption  cannot  be  measured  by  the  number  of  men  in  stripes, 
but  can  only  be  gauged  by  the  quickening  of  the  public  conscience  to  the 
necessity  of  stamping  out  the  things  that  dishonor.  The  remedy  for  cor- 
ruption in  its  last  analysis  is  in  the  sense  of  popular  rectitude.  It  has  not 
been  many  years  since  bribery  was  not  considered  seriously.  Then  came 
the  revelations  and  the  realization  that  it  is  an  offense  that,  if  tolerated, 
will  undermine  and  destroy  free  government.    Missouri's  fight  against 


432  AMERICAN  STATE  GOVERNMENT 

this  evil  is  going  to  be  kept  up  with  never-ceasing  vigor.  The  sentiment 
against  bribery  is  in  the  hearts  of  the  people  of  this  state,  and  can 
never  die. 

The  proposed  measure  is  an  important  help  in  the  eradication  of 
corruption,  for  it  strengthens  the  law  where  it  is  feeblest,  and  will  do 
more  than  anything  else  to  put  a  stop  to  bribery. 

Respectfully,  Jos.  W.  Folk,  Governor 


THE  STATE  BOSS* 

The  political  boss  of  any  state,  when  fully  developed,  is  readily  recog- 
nizable by  the  public.  Not  only  is  he  known  individually,  but  his  general 
characteristics  and  powers  are  estimated  correctly.  He  is  not  popular 
with  the  people,  not  even  with  the  rank  and  file  of  his  own  party.  The 
"  workers  "  like  him,  the  party  machine  yields  him  a  cheerful  obedience, 
the  legislature  does  his  will ;  but  the  masses  distrust  him.  He  elects 
mayors,  governors,  legislators,  but  he  himself  can  be  elected  to  no  office 
in  the  gift  of  the  people.  When  he  attains  office,  as  he  often  does,  it  is 
by  executive  appointment  or  through  the  agency  of  a  legislative  body. 
The  one  high  office  open  to  him  is  that  of  United  States  senator,  as  is 
evident  from  the  political  history  of  the  states  of  Pennsylvania,  New 
York,  Mar)^land,  and  Ohio. 

The  devil  is  said  to  be  persevering,  and,  no  doubt,  finds  the  one  good 
quality  essential  to  the  success  of  his  calling.  In  like  manner,  and  un- 
questionably for  a  like  reason,  the  boss  has  the  single  virtue  of  being 
true  to  his  word  in  all  business  transactions.  Whether  acting  as  the  paid 
agent  of  an  individual  or  a  corporation,  or  whether  dealing  with  sub- 
bosses  and  heelers,  his  promises  are  to  be  relied  upon.  Only  in  his  rela- 
tions to  the  public  does  the  rule  not  hold  good.  The  people  he  fools  and 
deceives  unhesitatingly  and  openly. 

What  is  the  cause  of  bossism  ?  Why  is  its  power  constantly  augment- 
ing, its  field  continually  widening  ?  Or,  to  put  the  case  more  definitely, 
by  what  means  is  the  state  boss  able  to  name  the  governor  and  dominate 
the  legislature  of  his  state .' 

His  immediate  source  of  power  is  control  of  the  state  organization  of 
the  dominant  political  party. 

It  will  be  observed  that,  with  scarcely  an  exception,  the  party  domi- 
nant in  any  state  is  the  one  which  has  the  most  money.  Occasionally  the 
impoverished  opposition  wins  a  victory,  but  it  is  temporary  at  best,  and 
usually  but  partial.  In  the  southern  states  the  Democratic  party  is  in 
permanent  ascendency ;  in  the  New  England,  Middle,  and  Pacific  states, 
and  in  a  few  of  the  Rocky  Mountain  states  the  Silver  party  is,  or  has 

J  From  article  in  Coitiiry,  lyoj,  by  ex-Govcrnor  L.  I-".  C.  Garvin  of  Rhode  Island. 
Reproduced  by  permission. 


ELECTIONS  AND  NOMINATIONS  433 

been,  dominant ;  but  everywhere  it  is  the  richer  party.  This  porten- 
tous situation  is  due  to  the  fact  that  money  counts  more  and  more 
every  year  in  determining  the  result  of  political  campaigns.  A  strong 
party  organization,  covering  every  section  of  a  state,  entails  a  large  ex- 
penditure. The  money  comes  chiefly  from  candidates,  the  holders  of 
lucrative  offices,  and  the  beneficiaries  of  legislation,  all  of  whom  are  to 
be  found  in  much  greater  numbers  and  stimulated  by  much  higher  hopes 
in  the  permanently  dominant  party. 

The  distribution  of  the  large  sums  derived  from  these  several  sources 
is  not  made  by  the  contributors  themselves,  but  through  one  individual, 
the  boss.  He  determines  the  destination  of  the  fund,  in  what  directions 
it  shall  be  paid  out,  and  from  whom  it  shall  be  withheld.  Reputable 
candidates,  aware  that  their  contributions  to  the  campaign  are  to  be  used 
corruptly,  do  not  desire  any  itemized  account  of  expenditures.  All  they 
ask  for  is  the  delivery  of  the  goods. 

Just  how  a  state  boss  controls  a  legislature  was  once  explained  to  a 
company  of  gentlemen  in  my  presence  by  Benjamin  F.  Thurston,  Esq.,  of 
Providence,  Rhode  Island.  .  .  .  The  modus  operandi  when,  for  instance, 
the  boss  wished  to  get  rid  of  a  troublesome  state  senator,  was  described 
as  follows  :  When,  a  few  weeks  before  the  campaign  opened,  a  wirepuller 
from  the  obnoxious  senator's  town  called,  according  to  custom,  to  see  the 
boss,  a  conversation  of  the  following  nature  would  ensue : 

Boss.    Can't  you  send  up  for  senator  a  better  man  than  Mr.  A .' 

Wirepuller.  Oh,  no.  He  's  very  popular,  and,  besides,  it  is  the  cus- 
tom of  our  town  to  give  senators  a  second  term. 

Boss.    It 's  a  nice  day. 

Wirepuller  (after  a  long  pause).  How  will  it  be  about  funds  this 
election  ? 

Boss.    Oh,  there  will  be  no  money  this  year. 

Whereupon  the  visitor,  taking  his  departure,  indulges  in  a  brown 
study ;  but  about  a  week  later  he  appears  again,  when  the  same  topic  of 
conversation  is  revived. 

Boss.    So  you  are  going  to  reelect  Senator  A,  are  you  ? 
Wirepuller  (Jiesitatingly).    I  suppose  so.     It  would  be  hard  work  to 
beat  him  in  caucus. 

Boss.    Can't  B  defeat  him  in  caucus  ? 
Wirepuller.    Perhaps  so,  but  it  would  take  a  lot  of  money. 
Boss.    Oh,  you  can  have  all  the  money  you  want  for  that  purpose. 

From  this  typical  conversation  it  may  be  understood  how  the  manager 
of  the  dominant  party,  by  holding  the  purse  strings,  can  easily  keep  a 
majority  of  both  branches  of  the  legislature  subservient  to  his  will.  In 
the  event  of  his  failing  to  defeat  an  objectionable  candidate  at  the  pri- 
mary meeting,  he  is  ready  to  furnish  money  for  use  against  him  at 
the  polls,  and  in  this  way  not  infrequently  to  secure  the  services  of 


434  AMERICAN  STATE  GOVERNMENT 

his  successful  opponent.  Every  powerful  boss  has  at  his  disposal,  in 
a  pinch,  some  members  of  the  legislature,  who  nominally  belong  to 
the  opposition  party. 

With  a  boss  at  the  head  of  a  state  machine,  acting  through  subbosses, 
each  of  which  is  intimately  acquainted  either  with  a  city  or  with  an  ex- 
tensive rural  community,  it  is  easy  to  see  how  he  can  force  a  state  legis- 
lature to  enact  unpopular  laws  and  to  elect  a  United  States  senator  who 
is  not  only  offensive  to  a  majority  of  the  entire  electorate,  but  who  is  far 
from  being  the  choice  of  a  majority  of  the  members  of  his  own  party. 
By  the  lavish  but  judicious  outlay  of  the  campaign  fund,  in  packing  cau- 
cuses, hiring  workers,  corrupting  active  opponents,  bringing  out  the  vote, 
and,  when  necessar)-,  bribing  the  voters,  it  is  manifest  that  the  will  of  the 
people  finds  but  a  small  chance  of  gaining  its  ends  through  an  ordinary 
election. 

Only  in  extraordinar}^  times,  when  public  sentiment  is  stirred  to  its 
depths,  when  citizens,  usually  indifferent,  devote  time  and  thought  and 
some  money  in  support  of  a  popular  movement,  — -  only  on  such  excep- 
tional and  infrequent  occasions  is  the  supremacy  of  the  boss  really  en- 
dangered. When,  after  a  long  interval  of  quiescence,  such  a  period  of 
awakening  occurs,  it  too  often  happens  that  the  immediate  grievance 
felt  by  the  public  is  a  comparatively  small  one,  and  the  remedy  applied, 
though  for  the  time  effectual,  is  only  superficial.  The  temporary  vigilance 
soon  passes ;  that  slow-moving  giant,  the  public,  goes  to  sleep  again, 
and  the  boss  resumes  undisputed  sway. 

The  stronghold  of  the  state  boss  is  the  legislature.  When  he  selects 
a  candidate  for  governor  or  other  elective  executive  officer,  he  finds  it 
necessary  in  most  states  to  take  into  account  the  voters.  The  largest 
constituency  in  the  state  is  the  most  diflScult  to  deceive  and  the  most 
costly  to  corrupt.  Moreover,  the  people  have  something  of  a  prejudice 
in  favor  of  a  respectable  figurehead  as  candidate  for  governor,  and  even 
for  mayor.  They  have  been  known,  in  so  boss-ridden  a  state  as  Pennsyl- 
vania, to  stampede  to  the  opposing  candidate.  But  the  bosses  are  not 
greatly  distressed  at  losing  a  governor,  since  the  real  power  in  a  state, 
the  legislature,  is  rarely  carried  in  both  branches,  by  popular  uprisings, 
however  extended.  The  boss  of  any  state,  if  able  to  retain  control  of 
either  Senate  or  House  of  Representatives,  frequently  manages  to  carry 
his  pet  measures  through  the  other  branch ;  and,  at  the  very  worst,  he 
can  hold  radical  reforms  in  abeyance  until  after  another  election,  at  which 
he  is  quite  sure  to  find,  the  energy  of  the  public  being  exhausted,  an  easy 
victory  all  along  the  line. 

The  distribution  of  campaign  funds  by  the  boss  is  supplemented  by 
his  equally  shrewd  distribution  of  salaried  offices.  But  even  though  civil- 
service  reform  were  fully  established  in  any  state,  the  boss,  if  well  sup- 
plied with  the  sinews  of  war,  would  find  no  difliculty  in  maintaining  his 
hold  upon  its  policies. 


IX 

CONSTITUTIONAL  CONVENTIONS 

THE  NEW  YORK  CONSTITUTIONAL  CONVENTION  ^ 

By  Hon.  J.  H.  Hamlin 

Before  adverting  to  matters  accomplished  by  the  convention,  some- 
thing as  to  its  inception,  organization,  and  general  characteristics  may 
be  desirable.  The  authority  for  its  existence  was  embodied  in  the  former 
constitutional  provision  that  in  the  year  1866,  and  in  each  twentieth  year 
thereafter,  the  question  should  be  submitted  to  the  electors  of  the  state 
to  decide.  Shall  there  be  a  convention  to  revise  the  constitution  and 
amend  the  same  ?  If  the  answer  should  be  in  the  affirmative,  the  legisla- 
ture was  required  to  provide  for  the  election  of  delegates.  Pursuant  to 
this  mandate  the  question  was  submitted  to  the  electors  in  1886  and 
they  decided  with  practical  unanimity  in  favor  of  a  convention.  Partisan 
considerations,  however,  controlled  subsequent  legislative  action  on  the 
matter,  and  no  provision  was  made  for  the  meeting  of  a  convention  until 
1892,  when  an  act  providing  for  the  election  of  delegates,  to  meet  on 
the  second  Tuesday  of  May,  1893,  became  a  law.  Political  considera- 
tions again  intervened,  and  in  1893  the  act  of  the  preceding  year  was 
substantially  amended  out  of  existence,  and  a  new  statute  took  its  place. 
The  act  of  1892  had  very  closely  followed  the  provisions  of  the  law 
which  had  summoned  into  existence  the  convention  of  1867  ;  each  of 
them  provided  for  32  delegates,  to  be  elected  from  the  state  at  large, 
with  a  proviso  that  no  elector  should  vote  for  more  than  16  of  the 
delegates,  thus  establishing  minority  representation.  The  result  of  this 
method  of  election  was  highly  satisfactory.  It  brought  into  the  conven- 
tion of  1867  men  of  commanding  ability,  belonging  to  each  of  the  two 
great  political  parties.  For  political  reasons,  which  ultimately  recoiled 
upon  the  party  responsible  for  the  change,  this  provision  was  annulled. 
The  act  of  1893,  under  which  the  convention  came  into  being,  provided 
for  175  delegates,  of  which  15  were  elected  from  the  state  at  large  and 
5  from  each  of  the  32  senatorial  districts.  Accordingly,  at  the  fall  elec- 
tion party  machinery  was  put  in  motion,  nominations  were  made  in  the 
usual  way,  and  delegates  elected  to  the  convention,  which  met  at  Albany 
on  the  second  Tuesday  of  May  following.    Politically  the  Republicans 

iProm  Yale  Lazu  Journal,  June,  1895. 

435 


436  AMERICAN  STATE  GOVERNMENT 

were  in  the  majority.  Of  the  175  members  elected,  98  were  at  least 
nominally  Republicans  and  7  7  Democrats  ;  very'  few,  however,  were  pro- 
fessional politicians.  Political  affiliations,  indeed,  played  no  great  part  in 
determining  the  action  of  the  convention ;  in  only  a  few  instances  were 
amendments  carried  or  defeated  by  a  strict  party  vote. 

Professionally  three  fourths  of  the  delegates  were  lawyers.  A  large 
number  of  them  were  liberally  educated.  Not  a  few  had  gained  a  wide 
reputation  at  the  bar.  As  a  whole  they  were  men  of  ability  and  high 
standing  in  the  communities  where  they  resided,  and  they  had  a  high 
sense  of  the  responsibilities  and  duties  of  their  position.  In  the  selection 
of  a  presiding  officer  the  convention  was  supremely  fortunate.  In  the 
person  of  Joseph  H.  Choate  was  found  one  whose  attainments  and 
abilities  reflected  honor  upon  the  convention  and  dignified  its  proceedings. 
His  delightful  tact  disarmed  criticism,  whatever  his  rulings  ;  and  that  un- 
faltering courage  in  maintaining  his  convictions,  which  especially  charac- 
terized him,  gained  for  him,  even  more  than  the  charm  of  his  eloquence, 
the  admiration  of  the  convention.  At  the  head  of  the  judiciary  committee 
was  Elihu  Root,  whose  infinite  capacity  for  labor,  added  to  his  great 
abilities  and  acquirements  as  a  lawyer,  enabled  him  to  impress  himself 
upon  the  work  of  the  convention  to  an  extent  unapproached  by  any  other 
member  of  that  body. 

Early  in  its  session  the  convention  was  called  upon  to  assert  and  main- 
tain its  prerogatives.  A  writ  of  prohibition  was  issued  out  of  the  supreme 
court  upon  the  petition  of  one  Herman  F.  Trapper,  a  sitting  member, 
whose  seat  was  contested  on  the  ground  of  gross  frauds  committed  at 
one  or  more  of  the  election  districts  within  the  city  of  Buffalo,  from  which 
he  was  returned.  The  writ  assumed  to  restrain  the  convention  from  tak- 
ing any  action  which  should  interfere  with  or  abridge  in  any  way  his 
rights  and  privileges  as  a  member,  and  required  it  to  desist  from  pro- 
ceedings in  the  matter  of  deciding  upon  his  qualifications  and  election. 
The  writ  having  been  personally  served  upon  each  of  the  delegates,  two 
questions  were  fairly  presented :  first,  as  to  the  right  of  the  convention 
to  pass  upon  the  election  and  qualification  of  its  own  members ;  second, 
whether  the  convention  was  inferior  to  the  supreme  court. 

Considering  it  to  be  of  the  first  importance  that  a  body  chosen  to 
revise  the  organic  law  should  be  free  from  interference,  whether  by  the 
executive,  legislative,  or  judicial  branch  of  the  government,  the  conven- 
tion repudiated  the  action  of  the  court  and  asserted  its  rights  as  an  in- 
dependent legislative  assembly,  with  plenary  powers  within  its  sphere  of 
action,  which  it  derived  directly  from  the  people.  As  a  corollary  to  this 
proposition,  it  maintained  that  the  right  to  judge  of  the  election  and 
qualification  of  its  members  was  essential  to  its  efficiency,  and  that  inter- 
ference from  without,  in  this  regard,  would  be  destructive  to  its  inde- 
pendence and  the  proper  performance  of  its  powers.  The  convention 
caused  a  copy  of  the  report  adopted  by  it  to  be  transmitted  to  the 


CONSTITUTIONAL  CONVENTIONS  437 

supreme  court,  together  with  a  respectful  remonstrance  against  its  enter- 
taining jurisdiction  in  the  matter.  As  nothing  further  was  heard  of  the 
proceeding,  it  is  to  be  presumed  that  the  court,  on  consideration,  adopted 
the  views  of  the  convention. 

Having  maintained  its  prerogatives,  the  convention  proceeded  to  per- 
form the  work  for  which  it  had  been  summoned.  The  constitution  of 
1846  had  for  nearly  half  a  century  served  as  the  great  charter  of  the 
state.  At  the  time  of  its  promulgation  forebodings  of  the  ills  likely  to 
accrue  to  the  body  politic  from  its  adoption  were  everywhere  heard.  It 
was  bitterly  assailed  as  extreme  in  its  democratic  tendencies  and  as  prac- 
tically revolutionizing  the  policy  of  the  state  with  its  decentralization  of 
political  power  and  its  elective  judiciary.  But  the  event  has  not  fulfilled 
the  dire  predictions.  It  did,  indeed,  in  the  words  of  the  address  which 
accompanied  it,  "  place  the  happiness  and  prosperity  of  the  people  of  the 
state  under  God  in  their  own  hands";  but  the  people  have  seen  to  it 
that  no  great  detriment  occurred  to  the  state  thereby.  We  have  under 
its  sanction  advanced  with  unprecedented  rapidity  in  population,  wealth, 
and  power,  and,  on  the  whole,  the  high  character  of  our  judiciary  has 
been  well  maintained. 

The  convention  of  1894  was  not  inclined  to  radical  measures.  It 
appreciated  the  excellence  of  the  existing  constitution,  very  many  of 
whose  provisions  had  received  judicial  construction.  In  the  main  it  was 
known  to  be  acceptable  to  the  people  of  the  state,  and  it  was  deemed  to 
be  the  part  of  prudence  to  modify  the  old  constitution  only  so  far  as 
changed  conditions  had  rendered  it  desirable.  But  this  conservative  action 
was  not  accepted  without  resistance  by  the  reformers  both  within  and 
without  the  convention.  At  the  time  when  the  air  was  thick  with  social- 
istic schemes  for  regenerating  political  life,  it  was  not  to  be  supposed 
that  the  convention  would  escape  the  enthusiastic  doctrinaire  and  the 
professional  reformer.  They  were  present  in  force  and  brought  their 
amendments  with  them.  Scarcely  a  provision  of  the  old  constitution 
seemed  satisfactory  to  every  one ;  even  the  preamble  and  Bill  of  Rights, 
which  were  supposed  to  be  fairly  acceptable,  were  asserted  to  be  radically 
defective.  Something  over  four  hundred  and  fifty  proposed  amendments 
of  the  most  diversified  character  were  submitted  to  the  convention  for 
its  consideration.  Fortunately  the  delegates,  as  a  whole,  were  a  conserv- 
ative body  of  men.  They  fully  appreciated  the  fact  that  in  the  attempt 
to  reform  abuses,  the  abuses  of  reformation  were  to  be  avoided.  Out  of 
this  mass  of  material  only  thirty-three  amendments  were  presented  to  the 
electors  for  adoption. 


438  AMERICAN  STATE  GOVERNMENT 

THE  MICHIGAN   CONSTITUTIONAL  CONVENTION  ^ 

By  J.  A.  Fairlie 

It  was  in  April,  1906,  that  the  people  of  Michigan  voted  that  a  con- 
vention to  revise  the  constitution  should  be  held.  The  necessary  act  of 
the  legislature  to  provide  for  the  election  of  delegates  might  easily  have 
been  passed  early  in  the  session  of  1907,  and  the  delegates  elected  at 
the  April  election  of  that  year.  But  the  act  was  not  passed  until  towards 
the  end  of  the  session,  the  delay  being  perhaps  due  to  the  hope  of  some 
members  of  the  legislature  that  they  would  be  returned  as  delegates.  A 
ruling  of  the  supreme  court,  however,  declared  members  of  the  legislature 
ineligible,  under  the  provision  of  the  existing  constitution  declaring  them 
ineligible  for  appointment  to  any  office  created  by  the  legislature  of 
which  they  were  members. 

The  act  for  the  election  of  delegates  provided  for  a  body  of  96  mem- 
bers, 3  to  be  elected  from  each  senatorial  district.  In  districts  where  the 
direct  primary  had  been  adopted,  primaries  were  to  be  held  on  August  13. 
The  election  of  delegates  was  set  for  September  17.  The  convention 
was  to  meet  on  October  22.  Delegates  were  to  receive  ^10  per  day 
until  January  31,  but  might  sit  beyond  that  date  without  pay.  Other 
provisions  in  regard  to  the  organization  and  procedure  of  the  convention 
were  added.  Some  of  these,  it  has  been  urged,  were  beyond  the  authority 
of  the  legislature  to  impose, —  such  as  the  provisions  that  the  revised  con- 
stitution should  be  submitted  to  the  electors  as  a  whole,  and  that  it  should 
be  submitted  at  a  special  election  in  April,  1907.  On  the  latter  point  the 
supreme  court  has  recently  decided  that  the  legislature  did  exceed  its  power. 

Direct  primaries  for  nominations  were  held  in  about  half  of  the  dis- 
tricts. Both  at  these  and  at  the  election  of  delegates  in  September  a  very 
light  vote  was  cast, —  the  more  surprising  in  view  of  the  large  vote  in 
April,  1906  (over  three  hundred  thousand)  on  the  question  of  calling  the 
convention.  But  in  explanation  of  this  light  vote  it  may  be  said  not  only 
that  the  election  was  set  for  a  special  date,  but  that  it  came  at  an  unusual 
time,  the  primaries  in  the  middle  of  the  summer.  Another  factor  was 
the  absence  of  active  campaigning  on  the  part  of  most  of  the  candidates, 
the  general  consensus  of  opinion  being  that  the  usual  political  methods 
were  out  of  place  for  this  purpose. 

It  has  been  said  that  the  members  of  the  convention  constituted  the 
best  and  most  representative  assembly  that  has  ever  met  in  Michigan. 
It  is  at  least  clear  that  among  the  delegates  were  to  be  found  men  repre- 
senting all  classes  of  the  population  and  wide  differences  of  opinion  ; 
that  most  of  them  were  men  of  intelligence  and  training,  and  a  good 
proportion  were  men  of  the  first  order  of  ability ;  and  that  they  worked 
earneslly  and  seriously  in  the  task  before  them. 

1  From  Michigan  Law  Review,  1908. 


CONSTITUTIONAL  CONVENTIONS  439 

Sixty  delegates  were  recorded  as  lawyers,  whereas  in  the  convention 
of  1850  a  majority  were  farmers.  Twenty  were  business  men  (including 
several  wealthy  capitalists,  some  bankers,  and  5  manufacturers),  7  were 
farmers,  2  were  publishers,  2  were  professors  in  educational  institutions, 
and  there  was  i  clergyman  and  i  carpenter.  Forty-four  members  had 
been  students  at  the  University  of  Michigan,  and  a  number  of  others  had 
a  college  education  at  other  institutions. 

From  a  party  classification  the  convention  was  overwhelmingly  Repub- 
lican, with  only  eight  delegates  elected  as  Democrats.  But  while  on  several 
important  questions  the  convention  was  very  closely  divided,  the  regular 
party  lines  were  not  in  evidence.  To  some  extent  the  convention  could 
be  separated  into  a  radical  and  a  conservative  group  ;  but  a  middle  group 
held  the  balance  of  power,  and  the  final  result  was  at  least  acceptable  to 
all  the  members  of  the  convention. 

A  good  proportion  of  the  delegates  had  previously  served  in  the  legis- 
lature or  in  other  public  posts.  On  the  other  hand,  a  large  proportion 
had  never  before  held  public  office,  and  among  these  were  some  of  the 
ablest  and  strongest  members,  whose  presence  emphasized  the  impor- 
tance of  the  work  to  be  done. 

Some  preliminary  canvassing  for  officers  took  place,  but  no  formal 
caucus  was  held,  and  at  the  first  session  (October  22)  John  J.  Carton, 
twice  Speaker  of  the  Michigan  House  of  Representatives,  was  unani- 
mously elected  president.  After  electing  the  other  most  important  officers 
a  committee  on  permanent  organization  and  order  of  business  was  ap- 
pointed, which  reported  a  plan  of  committees  and  employees,  and  was 
also  made  use  of  during  the  convention  as  a  central  committee  to  con- 
sider and  report  on  important  questions  of  convention  procedure. 

One  of  the  first  committees  to  be  appointed  was  the  committee  on 
rules,  on  whose  report  a  series  of  rules  was  adopted,  based  mainly  on 
those  of  the  Michigan  House  of  Representatives,  but  modified  in  several 
important  features,  so  as  to  provide  more  ample  opportunity  for  discus- 
sion and  deliberation.  The  regular  procedure  for  proposals  deserves 
especially  to  be  noted  as  follows : 

1.  Introduction,  first  reading,  and  reference  to  a  committee; 

2.  Report  of  committee  and  placing  in  the  general  order ; 

3.  Consideration  in  committee  of  the  whole  in  order  of  reference ; 

4.  Report  by  committee  of  the  whole,  and  reference  to  the  committee 
on  arrangement  and  phraseology  ; 

5.  Report  of  committee  on  arrangement  and  phraseology  ; 

6.  Second  reading,  vote  on  passage  by  roll  call ; 

7.  Reference  to  committee  on  arrangement  and  phraseolog}' ; 

8.  Report  of  the  complete  revision  by  the  committee  on  arrangement 
and  phraseology ; 

9.  Consideration  of  the  complete  revision  in  committee  of  the  whole, 
by  sections ; 


440  AMERICAN  STATE  GOVERNMENT 

10.  Report  of  the  committee  of  the  whole ; 

1 1 .  Third  reading  and  passage  (on  roll  call)  by  articles  and  as  a 
whole. 

Special  attention  may  be  called  to  the  four  different  opportunities  for 
discussion  and  amendment  of  every  part  of  the  revision  in  the  conven- 
tion and  to  the  double  reference  to  the  committee  on  arrangement  and 
phraseology'. 

Other  rules  that  may  be  noted  v^^ere  those  providing  for  the  reading 
and  printing  in  full  of  all  proposals,  and  reserving  the  power  in  a  major- 
ity of  the  convention  to  discharge  any  committee  from  the  consideration 
of  any  proposal. 

Twenty-eight  standing  committees  were  appointed,  each  having  from 
5  to  15  members,  giving  3  committee  places  to  most  members  of  the 
convention.  The  largest  committees,  and  the  most  important,  were  those 
on  the  legislative  department,  the  judiciary,  cities  and  villages,  public-ser- 
vice corporations,  finance  and  taxation,  and  submission  and  address  to 
the  people,  —  each  of  1 5  members.  The  committee  on  miscellaneous 
provisions  had  13  members;  the  committees  on  executive  department, 
private  corporations,  education,  and  liquor  traffic  had  each  1 1  members ; 
and  the  committees  on  counties  and  townships  had  each  9  members. 

Before  appointing  the  committees  the  president  invited  the  delegates 
to  indicate  their  preferences,  and  these  were  apparently  followed  as  far 
as  possible.  Among  the  chairmen  of  the  more  important  committees 
may  be  mentioned  Henry  M.  Campbell,  legislative  department  and  per- 
manent organization ;  R.  H.  Fyfe,  the  judiciary ;  Alfred  Milnes,  cities 
and  villages  ;  A.  E.  Sharpe,  public-service  corporations  ;  Roger  I.  Wykes, 
finance  and  taxation ;  Victor  M.  Gore,  submission  and  address  to  the 
people ;  E.  J.  Adams,  miscellaneous  provisions  and  rules ;  Delos  Fall, 
education  ;  and  A.  L.  Moore,  liquor  traffic.  Most  of  these  were  delegates 
of  large  influence  in  the  convention,  but  other  members  also  played  a 
prominent  part. 

Much  of  the  iinportant  work  of  the  convention  was  accomjDlished  in 
the  committees,  and  of  this  work  detailed  records  arc  not  available.  For 
more  than  two  months  the  convention  as  a  whole  held  only  afternoon 
sessions,  leaving  the  mornings  and  evenings  for  the  meetings  of  com- 
mittees. At  these  meetings  the  many  proposals  (over  four  hundred  were 
introduced)  were  discussed  more  thoroughly  and  with  greater  freedom 
than  was  possible  in  the  larger  assembly.  These  committee  discussions 
were  supplemented  by  the  even  more  informal  discussions  of  groups  of 
delegates,  who  would  gather  in  the  intervals  between  more  formal  meet- 
ings to  talk  over  one  problem  and  another.  'J'he  committees  also  received 
the  petitions  which  were  addressed  to  the  convention,  and  all  of  the  more 
important  committees  held  one  or  more  public  hearings  for  the  discussion 
of  special  questions  by  those  not  members  of  the  convention.  And  the 
result  (jf  the  committee  work,  while  in  no  case  depriving  the  convention 


CONSTITUTIONAL  CONVENTIONS  441 

of  its  full  control  over  any  subject,  was  that  on  many  matters  the  con- 
clusions of  the  committees  were  accepted  with  little  or  no  debate  in  the 
convention. 

On  a  few  questions  larger,  but  still  informal,  conferences  of  those 
interested  in  a  particular  question  were  held.  On  one  occasion  a  con- 
ference committee  was  appointed,  through  the  action  of  the  convention, 
in  an  attempt  to  reach  a  compromise  agreement  in  regard  to  the 
"  initiative."  This  conference  committee  did  not  fully  succeed,  but  it  led 
indirectly  to  the  result  finally  adopted. 

At  the  outset  of  the  convention  it  was  decided  that  a  complete  steno- 
graphic report  of  the  debates  and  proceedings  should  be  made  and 
published.  Owing  to  delay  in  the  printing,  the  daily  reports  were  not 
available,  as  some  expected,  for  following  the  current  work  of  the  con- 
vention. But  the  postponement  of  the  vote  of  the  electors  on  the  revised 
constitution  until  November  gives  an  opportunity  to  examine  the  complete 
record  and  to  trace  the  proceedings  of  the  convention  from  its  beginning 
to  the  end.  And,  with  all  the  attention  given  to  the  convention  by  the 
newspapers,  it  must  be  said  that  a  close  study  of  the  debates  will  be 
necessary  to  give  anything  like  an  adequate  comprehension  of  what  was 
said  and  done. 

During  the  earlier  weeks,  while  most  attention  was  being  given  to 
committee  work,  there  was  little  talk  and  no  long  speeches.  But  after 
the  New  Year,  when  the  convention  was  holding  two  and  three  sessions 
a  day,  and  the  important  questions  had  been  reported  for  action,  the 
record  rapidly  lengthened.  Half  a  dozen  subjects  were  made  the  occasion 
for  extended  debate.  The  most  prolonged  was  that  on  the  initiative  for 
constitutional  amendments,  which  continued  for  four  days,  and  in  which 
more  than  fifty  delegates  took  part,  —  doubtless  the  longest  debate  in 
the  history  of  Michigan.  Other  subjects  which  received  special  attention 
were  the  questions  of  salaries,  prohibition,  woman  suffrage,  and  the 
modification  of  the  fellow-servant  rule. 

It  is  notable,  however,  that  most  of  the  changes  actually  made  in  the 
constitution  were  agreed  to  without  long  discussion ;  and  what  seemed 
to  many  the  most  important  of  all,  the  home-rule  provisions  for  cities 
and  villages,  were  adopted  in  committee  of  the  whole  after  but  three 
sessions,  and  with  only  brief  speeches  on  the  various  sections,  instead  of 
lengthy  orations  on  the  whole  subject.  Towards  the  end  of  the  conven- 
tion a  rule  was  adopted  limiting  speeches  in  committee  of  the  whole  to 
five  minutes,  and  for  the  last  few  days  the  same  rule  was  voted  for  the 
convention  ;  but  this  rule  was  not  infrequently  waived  by  unanimous 
consent,  and  there  was  no  effort  to  suppress  the  free  discussion  of  any 
question. 

As  a  whole,  the  convention  gave  ample  but  not  an  excessive  amount 
of  time  to  speech  making,  and  the  record  of  the  debates  will  be  consider- 
ably shorter  than  that  for  the  convention  of  1867. 


442  AMERICAN  STATE  GOVERNMENT 

A  few  words  may  be  added  as  to  the  work  of  the  committee  on 
arrangement  and  phraseolog}-,  which  exercised  a  larger  influence  on  the 
language  and  arrangement  of  the  constitution  than  has  been  usual  in 
state  conventions.  Every  section  of  the  revised  constitution,  as  agreed 
to  in  committee  of  the  whole,  was  referred  to  the  committee  on  arrange- 
ment and  phraseolog}'  to  recommend  such  modifications  in  the  language 
as  seemed  advisable,  before  the  passage  of  the  sections  on  second  read- 
ing. The  committee  made  its  recommendations  freely,  rewriting  a  good 
number  of  sections  and  sometimes  entirely  reconstructing  several  sections  ; 
and  it  had  the  satisfaction  of  having  every  one  of  its  recommendations 
adopted  by  the  convention. 

After  the  various  sections  had  passed  second  reading  they  were  again 
referred  to  this  committee  for  arrangement  in  the  different  articles  of  the 
complete  revision.  When  this  stage  had  been  reached  the  convention  ad- 
journed for  twelve  days,  which  gave  time  for  this  work  to  be  carefully 
done,  and  also  permitted  the  elimination  of  duplicate  and  conflicting 
clauses  and  further  changes  in  language  to  be  considered  and  recom- 
mended. As  a  result  it  is  believed  that  the  grouping  of  the  articles  and 
the  arrangement  of  sections  in  each  article  is  more  logical  and  will  help 
to  a  clearer  understanding  of  the  relations  of  the  various  provisions  to 
each  other.  And  while  the  new  constitution  inevitably  shows  signs  of  the 
many  hands  that  shared  in  its  construction,  there  is  more  uniformity  and 
less  duplication  and  conflict  of  provisions  than  might  well  be  expected  in  a 
document  which  is  the  composite  result  of  so  many  men  of  different  minds. 

The  final  week  of  the  convention  was  given  to  the  consideration  of 
the  complete  revision,  and  some  further  amendments  were  made  in  com- 
mittee of  the  whole  and  on  third  reading.  And  as  the  outcome  of  the 
thorough  consideration  and  the  spirit  of  concession  and  compromise  on 
the  most  controverted  questions,  on  the  final  vote  on  the  whole  consti- 
tution (on  February  21)  not  a  single  negative  vote  was  recorded,  —  a 
result  believed  to  be  unprecedented  in  the  history  of  constitutional  con- 
ventions, and  one  which  should  strongly  commend  the  new  constitution 
to  the  people  of  Michigan. 

It  may  be  hoped  that  the  convention  procedure  and  methods  of  busi- 
ness will  have  a  permanent  impress  on  the  future  conduct  of  legislative 
business  in  this  state.  It  is  true  that  all  the  convention  rules  and  prac- 
tices cannot  be  fully  applied  to  the  larger  volume  of  statutory  measures 
that  must  be  considered  at  each  session  of  the  legislature.  But  the  gen- 
eral principles  of  publicity,  thorough  consideration,  and  careful  attention 
to  forms  of  expression  and  arrangement  can  well  be  more  closely  followed 
than  they  have  been  ;  and,  if  this  result  is  secured,  it  will  be  not  the  least 
benefit  received  from  this  convention. 


CONSTITUTIONAL  CONVENTIONS 


443 


GENERAL  TENDENCIES  IN  STATE  CONSTITUTIONS  ^ 

By  James  Quale  Dealey 

Throughout  classical  and  medieval  philosophizing  runs  a  theory  of  a 
paramount  or  fundamental  law,  permanent  in  kind,  because  fixed  in 
nature.  This  theory  in  its  modern  form,  after  voicing  itself  for  a  time  in 
the  Cromwellian  period,  came  to  the  front  in  the  American  Revolution 
and  found  its  proper  expression  in  the  written  constitution.  In  our  fed- 
eral system,  owing  to  the  rigidity  of  the  national  Constitution,  the  devel- 
opment of  that  document  must  be  traced  in  the  varying  decisions  of  the 
Supreme  Court  of  the  United  States.  In  the  commonwealth  a  more 
flexible  system,  of  amendment  prevails,  and  for  that  reason  changes  in 
what  the  states  consider  to  be  their  fundamental  law  may  be  traced  more 
easily  in  the  constitutions  themselves,  subject  as  they  are  to  frequent  re- 
vision and  amendment. 

In  the  Revolutionary  period  these  constitutions  were  few  in  number, 
small  in  size,  and  contained  a  mere  framework  of  governmental  organi- 
zation. Since  that  time  some  two  hundred  state  constitutions  have  been 
made  or  revised.  The  forty-five  now  in  force  average  in  length  over  fifteen 
thousand  words,  the  longest,  that  of  Louisiana,  having  about  forty-five 
thousand.  In  place  of  fundamentals  only,  they  are  filled  with  details,  so 
petty  in  many  instances  as  hardly  worthy  even  to  be  dignified  as  statutory. 

This  tendency  to  enlargement  is  not  without  justification.  The  proper 
solution  of  problems  arising  from  the  complexity  of  modern  interests  de- 
mands more  wisdom  and  knowledge  than  is  usually  found  in  legislatures, 
which  are  often  incompetent  and  sometimes  venal.  The  democratic 
demand  for  legislation  through  convention  is  really  a  demand  for  legisla- 
tors of  a  higher  grade.  To  legislatures  in  consequence  are  left  the  mere 
details  of  legislation  with  a  minimum  of  discretion  in  the  formulation  of 
statutes.  Their  ability  in  this  sort  of  thing  is  well  seen  in  the  biennial 
output  by  the  states  of  nearly  twenty  thousand  statutes,  three  fifths  of 
which  are  local,  private,  or  special  in  kind. 

Our  present  state  constitutions  represent  different  stages  of  develop- 
ment and  may  be  divided  in  four  sets :  (i)  the  six  New  England  consti- 
tutions ;  (2)  the  ten  made  during  the  twenty-five  years  ending  with  1865  ; 
(3)  the  fourteen  made  from  that  date  up  to  1886;  and  (4)  the  fifteen 
new  and  revised  constitutions  of  the  last  twenty  years.  Three  more  will 
likely  be  added  to  this  number  within  the  next  twelve  months,  and  an 
average  of  one  per  year  may  be  expected  from  that  time  on.  The  process 
of  amendment,  through  which  about  twenty  additions  are  made  annually 
to  our  constitutions,  tends  to  modernize  all  of  these. 

A  comparison  of  these  sets  shows  that  the  starting  point  for  the  study 
of  state  constitutions  is  the  article  on  the  lawmaking  department.    This 

1  From  American  Political  Science  Review,  Februarj',  1907. 


444  AMERICAN  STATE  GOVERNMENT 

powerful  body  in  Revolutionary  days  completely  overshadowed  the  other 
two  departments  and  was  practically  the  repository  of  the  sovereign 
powers  of  the  state.  Though  the  theory  of  the  separation  of  powers 
was  held,  all  really  important  powers  were  in  fact  intrusted  to  the  legis- 
lature. This  is  by  no  means  the  present  condition.  Not  only  have  the 
other  two  departments  been  built  up  and  strengthened  at  the  expense 
of  the  assembly,  but  three  other  departments  of  government  have  devel- 
oped into  importance,  and  should  be  considered  in  any  discussion  of  the 
division  of  sovereign  powers.  If  the  government  is  that  organization 
through  which  all  the  sovereign  powers  of  the  state  may  be  expressed, 
then  surely  in  modern  times  we  should  speak  not  merely  of  the  three  his- 
toric departments  of  government,  viz.,  the  executive,  the  judicial,  and  the 
legislative,  but  also  of  the  differentiations  from  these,  the  administration, 
the  electorate,  and  that  nameless  agency  which  in  every  state  has  the  legal 
right  to  formulate  the  fundamental  law,  an  agency  which,  for  want  of 
a  better  name,  may  be  called  the  legal  sovereign.  These  six  departments 
unitedly  may  exercise  every  conceivable  power  included  within  the  term 
"  sovereignty." 

The  general  tendency  in  regard  to  these  six  departments  of  govern- 
ment, as  shown  by  our  existing  constitutions,  will  be  indicated  in  order, 
and  then  attention  directed  to  the  lengthy  series  of  limitations  placed  on 
the  exercise  of  other  powers  not  removed  from  legislative  discretion. 

I.  Administration.  Historically,  administration  is  of  course  part  of  the 
executive  function,  but  in  our  Revolutionary  period  it  was  at  first  controlled, 
and  in  part  carried  on,  by  the  legislatures.  This  was  done  through  com- 
mittees, tcmporaiy  and  then  permanent.  The  work  performed  by  these 
was  gradually  transferred  to  paid  officials,  who,  as  functions  became 
specialized,  were  organized,  for  the  purpose  of  carrying  on  the  work  of 
administration,  into  the  numerous  boards,  commissions,  and  departments 
of  government.  Most  of  our  states  are  still  in  this  stage  of  development. 
Every  new  line  of  activity  results  in  the  formation  of  a  special  board  or 
department,  the  organization  and  powers  of  which  are  frequently  defined 
in  the  constitution.  This  also  regularly  provides  for  the  election  by  popu- 
lar vote  of  the  heads  of  the  chief  administrative  departments,  such  as  the 
secretaries  of  state  and  of  the  treasury,  the  comptroller  or  auditor,  and 
the  superintendent  of  education.  As  these  numerous  boards  and  depart- 
ments really  perform  the  larger  part  of  the  governmental  business,  it  is 
surely  advisable  that  the  several  articles  and  provisions  of  the  constitution 
be  gathered  together  and  placed  under  a  separate  heading,  entitled  De- 
partments of  Administration.  Their  functions  also  should  be  coordinated, 
unified,  and  thoroughly  supervised.  The  absence  of  such  centralization 
is  perhaps  the  greatest  weakness  in  local  administration.  Supervisory  con- 
trol over  such  bodies  by  legislative  committees  tends  to  become  merely 
nominal,  with  the  inevitable  consequences  of  inefficiency  and  lack  of 
ec(;noniy.    There  is,  however,  a  strong  tendency  to  center  such  powers  in 


CONSTITUTIONAL  CONVENTIONS  445 

the  executive,  making  him  the  head  of  the  administration  as  in  the 
national  system.  This  is  done  by  bestowing  on  him  large  powers  in  ap- 
pointment and  removal,  authority  to  demand  reports  and  to  investigate 
the  management  of  departments. 

II.  The  executive.  Aside  from  control  over  administration,  the  chief 
gain  in  power  on  the  part  of  the  executive  is  his  veto  over  legislation. 
In  1788  two  states  only  had  placed  the  veto  'power  in  their  constitutions  ; 
at  this  time  but  two  states  withhold  it.  Thirty-one  states  adopt  the 
national  fraction  of  two  thirds  of  both  Houses  to  override  the  veto ;  the 
other  twelve  prefer  a  majority  or  three  fifths.  Thirty  states  now  allow 
the  governor  to  veto  items  of  appropriation  bills,  and  three  of  these  also 
allow  him  to  veto  part  or  parts  of  any  bill.  If  adjournment  intervenes 
between  the  sending  of  a  bill  to  the  governor  and  its  return  approved  or 
vetoed,  ten  states  allow  the  governor  a  period  of  from  three  to  thirty  days 
to  decide  whether  or  not  to  approve  such  bills.  Eighteen  states  allow  him 
to  file  objections  with  the  Secretar}'  of  State,  thereby  defeating  the  bill. 
The  veto  power,  especially  when  strengthened  by  the  power  to  veto  items 
and  to  approve  or  disapprove  after  adjournment,  has  aided  greatly  in 
the  enlargement  of  the  importance  of  the  executive  and  in  the  conserva- 
tion of  public  interests. 

The  governor's  temi  of  office  is  four  years  in  twenty-one  states,  two 
years  in  the  same  number,  three  in  New  Jersey,  and  one  year  in  Massa- 
chusetts and  Rhode  Island.  The  office  of  lieutenant  governor  is  still  re- 
tained in  thirty-two  of  the  states.  He  presides  over  the  Senate  in  thirty 
of  these.  In  Massachusetts  and  in  Rhode  Island  he  is  a  member  of  the 
council,  or  of  the  Senate,  ex  officio,  but  presides  only  in  the  absence  of 
the  governor,  who,  by  constitution,  is  presiding  officer.  The  old-fashioned 
executive  council  is  still  retained  by  three  of  the  New  England  States,  and  a 
modified  form  of  it  in  North  Carolina.  Iowa,  by  statute,  has  an  executive 
council  made  up  of  the  governor  and  the  heads  of  three  departments. 

III.  The  judiciary  depaiiinent.  The  older  constitutions  disposed  of 
this  department  in  few  words.  Discretionary  power  was  conferred  on 
the  legislature,  and  judges,  appointed  by  governor  or  legislature,  usually 
held  a  life  tenure.  The  newer  constitutions  completely  reverse  this 
practice.  The  courts  in  the  Ignited  States  do  not  simply  decide  cases ; 
they  interpret  finally  the  constitution,  and  to  that  extent  are  a  political 
factor.  For  this  reason  complex  business  conditions  and  the  rise  of  cor- 
porate interests  necessitate  much  more  attention  to  this  department  of 
government.  The  constitution  of  Louisiana,  for  instance,  devotes  about 
twelve  thousand  words  to  the  courts  of  the  state  and  of  the  city  and  parish 
of  New  Orleans.  The  newer  constitutions  regularly  outline  the  grades 
of  courts,  define  their  powers,  set  the  boundaries  for  judicial  districts,  and 
regulate  the  number  and  tenure  of  the  judiciar}-.  Three  of  the  origi- 
nal states  still  retain  a  life  tenure,  but  all  others  fix  a  term  of  years  for 
judges  of  the  supreme  court ;   the  term  varies  from  two  to  twenty-one 


446  AMERICAN  STATE  GOVERNMENT 

years.  Twenty  states  favor  the  six-year  term,  eight  and  twelve  years  are 
the  terms  next  favored,  three  states  have  long  terms,  and  Vermont  a  two- 
year  tenure.  Six  states  only  retain  appointment  through  the  governor, 
aided  by  council  or  Senate.  Four  choose  through  the  legislature  and  one 
(Connecticut)  nominates  through  the  governor,  and  elects  through  the 
assembly.  The  other  states  all  elect  their  judiciary  and  show  no  tendency 
in  the  other  direction.  Four  of  the  New  England  States  still  allow  the 
governor  or  assembly  to  ask  the  supreme  court  for  opinions  on  questions 
of  law,  South  Dakota  and  Florida  allow  the  governor  this  privilege,  but 
all  the  other  states  with  greater  wisdom  reject  this  provision.  There  is  a 
marked  tendency  in  the  constitutions  to  merge  law  and  equity  into  a  com- 
mon procedure,  to  modify  the  jur}',  to  define  libel,  and  to  safeguard  the 
exercises  of  eminent  domain  by  quasi-public  corporations.  All  these 
tendencies  unitedly  show  a  strong  determination  to  make  the  judicial 
system  responsible  directly  to  the  electorate. 

IV.  The  constitutional  convention.  The  modern  theory  of  a  funda- 
mental law,  and  its  embodiment  in  the  written  constitution,  have  necessi- 
tated the  development  of  a  governmental  agency  for  the  express  purpose 
of  formulating  the  fundamental  law.  Two  forms  of  this  agency  are  in 
use  among  the  states,  —  the  legislature  and  the  convention,  (i)  The 
legislature  in  the  performance  of  this  office  is  not  properly  a  legislature, 
but  a  convention.  This  is  shown  by  the  fact  that  its  recommendations  are 
not  sent  to  the  governor  for  his  approval  or  veto,  but  to  the  electorate 
for  final  decision.  The  older  method  of  amendment  was  through  the 
action  of  two  assemblies  and  large  fractional  votes  by  assembly  and  elec- 
torate. At  the  present  time  action  by  one  assembly  is  sufficient  in  twenty- 
six  states,  eighteen  still  require  two  assemblies,  and  the  remaining  state 
(New  Hampshire)  amends  only  in  convention.  All  but  Delaware  use  the 
referendum  for  final  decision.  Seventeen  of  the  constitutions  still  require 
a  two-thirds  vote  of  both  Houses  on  amendments ;  seven,  a  three-fifths 
vote ;  in  sixteen  a  majority  is  sufficient.  Only  two  states  require  more 
than  a  majority  for  referenda,  Rhode  Island  (three  fifths)  and  New 
Hampshire  (two  thirds) ;  the  usual  requirement,  that  of  twenty-eight . 
states,  is  "  a  majority  of  those  voting  thereon,"  but  a  few  make  amend- 
ment well-nigh  impossible  by  requiring  a  majority  of  the  electors  or  a 
majority  of  those  voting  at  a  general  election. 

(2)  Few  seem  to  realize  the  importance  of  the  constitutional  conven- 
tion in  American  state  governments.  It  is  the  great  agency  through 
which  democracy  finds  expression.  In  its  latest  form,  that  of  a  body 
made  up  of  delegates  elected  from  districts  of  equal  population,  it  is  one 
of  the  greatest  of  our  political  inventions.  Tliiough  it  popular  rights  may 
be  .secured  in  the  constitution,  legislative  tyranny  restrained,  and  power- 
ful interests  subordinated  to  the  general  welfare.  Not  that  these  objects 
have  as  yet  been  attained,  but  the  agency  is  here  through  which  an  en- 
lightened public  opinion  can  express  itself. 


CONSTITUTIONAL  CONVENTIONS  447 

All  but  thirteen  of  the  states  expressly  provide  for  the  calling  of  a  con- 
vention. In  twelve  of  the  thirteen,  conventions  can  be  called  under  legis- 
lative authority.  In  one  state  only  (Rhode  Island)  is  there  doubt  about 
the  matter.  Its  supreme  court  in  1883,  when  requested  by  the  Senate 
for  an  opinion,  in  its  reply  concluded  that  under  the  constitution  a  con- 
vention could  not  be  called.  Judge  Jameson,  however,  in  his  great  work 
on  "  Constitutional  Conventions,"  in  discussing  this  opinion  reaches  the 
opposite  conclusion.  If  the  composition  of  the  convention  is  mentioned 
at  all  in  the  constitution,  the  usual  provision  is  that  it  be  made  up  of  rep- 
resentatives from  districts  of  equal  population.  There  are,  however,  a 
few  exceptions.  Since  the  year  1890,  under  the  older  theory  that  the  con- 
vention is  the  repository  of  sovereign  powers,  five  constitutions  have  been 
promulgated  by  conventions  without  referendum.  To  check  this  possi- 
bility, fourteen  constitutions  expressly  require  the  referendum,  and  the 
other  states  would  likely  do  so  by  statute. 

V.  The  electorate.  If  this  body,  instead  of  being  referred  to  as  the 
"  sovereign  people,"  should  be  treated,  from  the  legal  standpoint  at^ny 
rate,  as  a  governmental  agency,  clearness  in  discussion  would^be^ined. 
Under  the  constitutions  this  governmental  agenc}'  has  three  sets  of 
powers :  (i)  the  power  of  appointment  to  certain  offices  through  elec- 
tions ;  (2)  the  power  to  assist  in  lawmaking  through  the  referendum,  and 
to  some  extent  through  the  initiative ;  and  (3)  the  power  to  assist  in  ju- 
dicial decisions  through  service  on  y-xxy.  These  powers  are  steadily  increas- 
ing through  the  agency  of  the  convention.  The  chief  officials  of  the  state 
and  municipality,  the  lawmakers  of  all  grades,  and  judges  supreme  and 
inferior  are  now  regularly  elected  by  popular  vote.  The  verdicts  of  juries 
now  are  often  made  by  a  fraction  of  the  whole  instead  of  by  unanimous 
vote.  The  referendum  is  generally  required  for  final  decisions  on  funda- 
mental law,  and  very  largely  on  local  and  general  statutes.  The  most 
remarkable  development  of  this  power  may  be  found  in  the  constitution 
of  Oregon  since  its  amendment  in  1902.  By  this  the  power  of  initiative 
and  referendum  is  fully  secured  to  the  electorate,  both  in  statutory  and 
constitutional  provisions.  These  powers  of  the  electorate  are  plainly  speci- 
fied in  the  constitutions  and  are  clearly  governmental  in  kind,  as  truly  so 
as  any  other  of  the  agencies  of  the  state. 

The  usual  basis  for  membership  in  the  electorate  is  that  to  be  made  citizens 
of  the  United  States  they  must  be  at  least  twenty-one  years  of  age.  Nine 
states  still  allow  aliens  to  vote  who  have  declared  their  intentions  to  become 
citizens,  four  states  grant  suffrage  to  women,  eight  states  have  a  slight 
educational  qualification,  six  other  states  have  an  educational  qualification 
as  one  of  several  alternatives,  and  three  of  these  introduce  a  property 
qualification  as  an  alternative,  but  otherwise  this  historic  restriction  sur- 
vives only  in  Rhode  Island,  in  the  election  of  members  of  city  councils. 

VI.  The  legist  at  we  or  general  assefubly.  The  Revolutionary  constitu- 
tions differed  widely  in  respect  to  the  organization  and  membersliip  of 


448  AMERICAN  STATE  GOVERNMENT 

their  legislatures.  Very  noticeable,  however,  is  the  present  tendency  to 
approximate  toward  a  common  type.  In  all  the  states  the  legislature  is 
bicameral.  Thirty-eight  states  elect  the  members  of  the  House  biennially  ; 
senators  have  a  four-year  term  in  twenty-nine  states  ;  and  twenty-four  pro- 
vide for  a  system  of  class  rotation  in  the  Senate.  A  biennial  session  is 
required  in  thirty-eight  states,  and  thirty-one  fix  actually  or  practically  a 
time  limit  for  legislative  sessions :  this  in  eighteen  states  is  fixed  at  sixty 
days.  The  membership  of  the  state  legislatures  is  unitedly  about  seven 
thousand,  but  nearly  two  thousand  of  these  are  found  in  the  seven  states 
that  have  assemblies  of  over  two  hundred  members.  The  size  of  the 
membership  in  each  House  naturally  varies  with  the  population  of  the 
state,  but  if  the  seven  mentioned  above  be  omitted,  the  general  average 
is  a  membership  of  about  thirty-five  in  the  Senate  and  ninety  in  the 
House.  The  House  membership  is  regularly  from  two  to  three  times 
that  of  the  Senate. 

In  seventeen  states  the  membership  of  both  Houses  is  made  up  of 
representatives  from  districts  of  equal  population.  In  nineteen  other  states 
there  is  a  requirement  that  a  locality,  either  county  or  town,  be  repre- 
sented in  one  or  both  Houses.  In  these  states,  however,  the  requirement 
modifies  only  slightly  the  principle  of  popular  representation,  and  the 
districts  are  practically  of  equal  population.  In  other  words,  thirty-six 
of  the  states  make  their  legislative  Houses  popular  in  basis.  The  nine 
other  states  depart  from  this  principle  by  requiring  a  disproportionate 
representation  for  their  rural  towns,  or  counties  of  small  population. 
The  worst  offenders  in  this  respect  are  Delaware,  Maryland,  Vermont, 
Connecticut,  and  Rhode  Island. 

Limitations  on  legislatures.  Under  the  national  Constitution  the  powers 
not  delegated  to  the  federation  nor  prohibited  to  the  states  are  reserved 
to  the  states.  This  reserved  power  may  be  exercised  in  each  state  by  its 
legislature,  unless  the  local  constitution  redclcgates  parts  of  this  power 
to  the  other  departments  of  government,  and  places  restrictions  and  pro- 
hibitions on  legislative  use  of  the  remainder. 

One  would  think  that  since  our  legislators  usually  come  from  districts 
of  equal  populaticni  they  would,  by  constitution,  be  intrusted  with  large 
discretionary  powers  in  legislation.  This,  however,  is  far  from  being  the 
fact.  There  is  a  steadily  increasing  tendency  to  restrict  in  every  possible 
way  the  enormous  powers  of  legislatures.  In  general  the  length  of  a 
constitution  indicates  the  amount  of  restriction  placed  on  lawmaking. 
Every  provision  in  a  bill  of  rights  limits  by  so  much  legislative  initiative. 
The  rapidly  increasing  powers  of  the  executive  and  the  electorate  in  ap- 
pointment, administration,  and  lawmaking  are  all  at  the  expense  of  the 
a.ssembly ;  the  growth  in  importance  of  the  constitutional  convention 
subordinates  proportionately  its  rival,  the  legislature.  Every  article  in  the 
constitution  that  fixes  the  organization  and  i)owcrs  of  a  department  of 
administration  or  division  of  government,  or  delines  a  policy  in  regard  to 


CONSTITUTIONAL  CONVENTIONS  449 

important  interests,  is  to  that  extent  a  restriction  on  legislative  discretion. 
Yet  in  the  newer  constitutions  one  may  expect  to  find,  as  already  indi- 
cated, lengthy  articles  on  the  judicial  and  administrative  departments, 
and,  moreover,  much  regulation  of  taxation,  finance,  local  government, 
education,  elections  and  the  suffrage,  land,  mines,  corporate  interests, 
and  labor.  To  these  regulations  should  be  added  long  lists  of  prohibi- 
tions, such  as  those  against  special  or  local  legislation,  and  numerous 
regulations  of  procedure  in  respect  to  the  handling  of  bills.  Subtract  all 
these  limitations  on  legislative  powers  from  the  totality,  and  the  question 
may  then  well  arise  whether  it  will  ultimately  prove  worth  while  to  retain 
an  expensive  legislature  to  exercise  its  small  residue  of  petty  powers. 
A  convention  meeting  periodically,  and  well-supervised  administrative  de- 
partments with  ordinance  powers,  might  perform  all  legislative  functions 
with  entire  satisfaction. 

It  seems  plain  that  the  really  important  lawmaking  body  at  the  present 
time  is  the  convention.  Its  members  are  of  a  higher  grade  and  turn  out 
work  distinctly  superior  to  that  of  legislatures.  These  really  are  bodies 
having  chiefly  ordinance  powers.  Whenever,  through  sudden  changes  in 
conditions,  a  legislature  unexpectedly  develops  large  discretionary  power 
in  statute  making,  the  next  convention  in  that  state  settles  the  principle 
itself  and  thereby  adds  another  limitation  to  legislative  initiative.  If  this 
tendency  continues,  the  biennial  session  will  become  quadrennial,  the 
term  be  limited  to  forty  or  sixty  days,  and  every  inducement  offered 
our  legislators  to  do  as  little  and  to  adjourn  as  speedily  as  possible.  On 
the  other  hand,  if  our  states  can  make  improvements  in  the  legislative 
system  and  select  a  better  grade  of  legislators,  our  lawmaking  might  con- 
tinue to  be  intrusted  to  legislatures  whose  members,  as  the  early  consti- 
tutions of  Maryland  and  Vermont  put  it,  should  be  persons  "  most  wise, 
sensible,  and  discreet,"  and  "  most  noted  for  wisdom  and  virtue." 

In  conclusion,  attention  may  well  be  called  to  the  practical  disappear- 
ance from  our  constitutions  of  some  old-time  provisions.  Among  these 
may  be  mentioned  the  annual  election  and  the  annual  session,  the  gov- 
ernor's council,  and  unequal  representation  of  the  people  in  lawmaking 
bodies,  the  life  tenure  of  judges,  and  the  advisory  capacity  of  the  supreme 
court.  Religious  restrictions  on  officeholding,  and  the  property  qualifi- 
cation for  suffrage,  with  very  slight  exceptions,  have  gone ;  the  town 
system  of  New  England  is  dying  in  that  section  and  does  not  exist  out- 
side of  it.  The  real  local  units  of  administration  now  are  (i)  the  rural 
county  with  its  numerous  subdivisions,  and  (2)  the  incorporated  city, 
both  of  which  are  gaining  power  throughout  the  United  States. 

If  general  tendencies  in  the  making  of  constitutions  may  be  condensed 
into  a  sentence,  we  may  say  that  governmental  powers  are  centering  into 
the  electorate,  which  voices  itself  through  the  ballot  and  the  convention. 


450  AMERICAN  STATE  GOVERNMENT 

THE  CONSTITUTION  OF  OKLAHOMA  ^ 

By  Charles  A.  Beard 

Mr.  Br)'ce  has  commended  to  scholars  the  study  of  our  state  constitu- 
tions on  account  of  their  historic  interest  and  their  value  for  the  science 
of  comparative  politics.  In  them,  he  urges  with  good  reason,  one  may 
read  the  annals  of  legislative  and  political  sentiment  more  easily  and 
more  succinctly  than  in  any  similar  series  of  laM^s  in  any  other  country.^ 
It  may  be  added  that  these  fundamental  laws  are  all  the  more  instructive 
to  the  student  of  practical  politics  because  they  contain,  in  a  large  meas- 
ure, the  definite  rules  of  law  which  are  steadily  being  devised  to  meet 
concrete  problems  as  social  pressures  from  various  directions  bring  them 
within  the  sphere  of  legislation.  In  fact,  it  is  highly  probable  that  th"; 
political  philosopher  who  considered  them  in  the  abstract  would  go  far 
astray ;  because  they  mainly  reflect  the  legal  adjustments  which  have 
accompanied  the  material  development  of  our  country  and  are  well-nigh 
meaningless  to  any  one  not  acquainted  with  the  course  of  our  economic 
evolution  during  the  past  century.  From  this  point  of  view  the  constitution 
of  the  recently  admitted  state  of  Oklahoma  possesses  a  unique  interest,  for 
its  framers  have  searched  with  great  assiduity  among  the  fundamental 
laws  and  statutes  of  all  the  other  states  for  the  latest  inventions  known  to 
American  politics,  and  have  worked  them  into  a  voluminous  treatise  on 
public  law,  —  a  mosaic  in  which  the  glittering  new  designs  of  "  advanced 
democracy  "  appear  side  by  side  with  patterns  of  ancient  English  make. 

I.  Structure  of  the  Central  Government 

In  the  bold  framework  of  this  new  government  there  is  little  that  is 
novel  or  striking,  and  it  would  be  a  work  of  supererogation  to  describe 
it  in  detail.  Accordingly  we  consider  only  the  newer  devices  which  have 
a  special  significance  in  showing  the  general  tendencies  in  our  constitu- 
tional development. 

In  the  midst  of  a  movement,  commended  by  the  experience  of  many 
states,*  toward  an  integration  of  the  administrative  system  into  a  responsi- 
ble hierarchy  and  the  centralization  of  control  in  the  hands  of  the  governor, 

1  From  Political  Science  Quarterly,  1909.         2  American  Commonwealth,  Vol.  I,  p.  450. 

8  It  must  be  admitted,  however,  that  some  of  the  states  arc  going  in  the  direction  of  pop>- 
ular  election,  (iovcrnor  Blancharrl  of  Louisiana,  in  his  message  of  May  14,  1906,  said  :  ''In 
my  inaugural  address  I  recommended  to  this  general  assembly  at  its  first  session  that  action 
be  taken  on  the  line  of  relegating  to  the  people  the  filling  by  popular  vote  of  offices  under 
the  state  government  that  were  filled  by  appointment  of  the  governor.  Much  then  was  done 
in  this  direction.  The  judges  of  the  supreme  court,  theretofore  appointed  by  the  governor, 
were  made  elective.  The  register  of  the  state  land  office  and  the  commissioner  of  agricul- 
ture and  immigration,  theretofore  appointive,  were  made  elective  the  same  as  other  state 
officers.  .So  also  vacancies  occurring  in  the  offices  of  district  judge,  district  attorney,  sheriff, 
and  clerk  of  court,  which  vacancies  when  occurring  had  heretofore  been  filled  by  appoint- 
ment of  the  govumor,  are  now  filled  by  election  of  tlie  people  at  special  elections  called  for 
the  purpose."  On  the  other  hand,  C.ovcmor  Hughes  of  New  SoxV,  in  his  U)oc)  inaugural 
address,  inveighed  against  the  irresponsibility  engendered  by  the  decentralized  elective  system. 


CONSTITUTIONAL  CONVENTIONS  451 

Oklahoma  has  gone  almost  as  far  as  possible  in  the  other  direction.  In 
fact,  faith  in  the  check  and  balance  system  as  a  guaranty  of  efficiency 
and  justice  in  administration  is  expressly  stated  in  the  article  ordering  the 
legislature  to  provide  by  law  for  the  establishment  and  maintenance  of 
"  an  efficient  system  of  checks  and  balances  between  the  officers  of  the 
executive  department,  and  all  commissioners  and  superintendents  and 
boards  of  control  of  state  institutions,  and  all  other  officers  entrusted 
with  the  collection,  receipt,  custody  or  disbursement  of  the  revenues  or 
moneys  of  the  state  whatsoever."  In  accordance  with  this  scheme  of 
government,  not  only  are  the  old  executive  officials  —  Secretary  of  State, 
auditor,  attorney-general,  and  treasurer  —  elected  by  popular  vote,  but 
also  the  newer  authorities  —  superintendent  of  public  instruction,  insur- 
ance commissioner,  state  examiner  of  state  and  county  accounts,  com- 
missioner of  labor,  mine  inspector,  and  commissioner  of  charities.  The 
corporation  commission,  which  in  New  York  is  appointed  by  the  gov- 
ernor by  and  with  the  advice  of  the  Senate,  is  composed  in  Oklahoma  of 
three  members  elected  by  the  voters  of  the  state  for  a  term  of  six  years, 
one  member  going  out  biennially.  Over  this  decentralized  and  inde- 
pendent administrative  system  the  governor  has  only  general  supervisory 
power.  He  must,  of  course,  see  that  the  laws  are  executed,  and  he  may 
require  information  under  oath  from  all  the  officers  and  commissioners 
of  the  state  on  any  subject  relating  to  the  discharge  of  their  public  func- 
tions ;  but  he  has  no  coercive  authority  over  the  chief  administrative  offi- 
cers through  the  disciplinary  power  of  appointment  and  removal.  By  way 
of  compensation,  however,  he  is  given  a  tenn  of  four  years  in  which  to 
learn  that  art  of  control  which  is  unknown  to  the  formal  legal  methods.' 

All  elective  state  officers,  including  the  justices  of  the  supreme  court, 
are  liable  to  removal  by  the  process  of  impeachment  "for  wilful  neglect 
of  duty,  corruption  in  office,  habitual  drunkenness,  incompetency,  or  any 
offense  involving  moral  turpitude  committed  while  in  office." 

In  determining  the  number  of  members  which  the  legislature  shall 
contain,  constitution  makers  in  the  United  States  have  apparently  arrived 
at  no  consistent  principles.  A  study  of  twenty-one  states  having  a  popu- 
lation of  between  one  and  three  millions  reveals  an  average  of  forty  in 
the  Senate  and  one  hundred  fifteen  in  the  House. "^  Oklahoma  some- 
what approaches  the  average  by  having  forty-four  senators  and  one 
hundred  nine  representatives,  but  when  compared  with  the  fifty-one 
senators  and  one  hundred  fifty  assemblymen  in  New  York,  with  a 
population  of  over  seven  millions,  the  number  seems  decidedly  out  of 
proportion.  Following  the  example  set  by  a  majority  of  the  states,  bien- 
nial election  of  the  members  of  the  lower  house  is  provided  ^  and  the 

1  Goodnow,  Politics  and  Administration,  p.  173. 

2  Dealey,  Our  State  Constitutions,  1907,  p.  43. 

3  According  to  Professor  Dealey,  three  states  in  1905  had  quadrennial  Sections  for  the 
lower  house  ;  Georgia,  Massachusetts,  New  Jersey,  New  York,  Rhode  Island,  and  South 
Carolina  had  annual  meetings;  and  all  the  other  states  held  biennial  elections.    Ibid.  p.  45. 


452  AMERICAN  STATE  GOVERNMENT 

senatorial  term  is  put  at  four  years,  one  half  retiring  biennially.  Biennial 
sessions  of  the  legislature  are  also  provided ;  but  to  induce  the  members 
to  confine  their  operations  within  a  limit  of  sixty  days  it  is  ordered 
that  they  shall  receive  $6  per  day  during  that  period  and  only  $2  for 
each  day's  attendance  thereafter.  Accordingly,  unless  patriotic  devotion 
to  lawmaking  or  some  other  important  considerations  are  brought  to 
bear,  Oklahoma  need  not  be  expected  to  contribute  more  than  her  quota 
to  that  vast  mass  of  statutes  which  Judge  Parker  estimated  at  25,000 
pages  a  year.^  This  precise  limitation,  however,  may  impose  on  the  legis- 
lators that  "  severe  nervous  strain  "  under  which  it  is  said  Indiana  law- 
makers labor  to  complete  their  necessary  work  within, the  sixty-one  days 
prescribed  by  the  constitution." 

Except  for  some  important  limitations  on  procedure  which  will  be 
considered  below,  the  Oklahoma  judicial  system  presents  few  features  of 
interest.  The  justices  of  the  supreme  court,  however,  are  selected  by  a 
rather  novel  process :  the  state  is  divided  into  five  districts ;  in  each  dis- 
trict candidates  are  to  be  nominated  at  the  primaries  by  the  political 
parties  or  by  petition ;  such  candidates  are  voted  for  by  the  qualified 
voters  of  the  state  at  large,  no  elector  voting  for  more  than  one  candi- 
date from  each  district ;  and  the  candidates  receiving  the  highest  number 
of  votes  in  the  state  are,  severally,  the  justices-elect  of  the  particular  dis- 
tricts from  which  they  are  nominated.  In  order  to  expedite  judicial  busi- 
ness, Oklahoma  has  not  resorted  to  the  drastic  device  of  refusing  to  pay 
the  justices  of  the  supreme  court  until  they  have  finally  decided  the  cases 
before  them,  —  a  method  now  in  force  in  several  states,'^  —  but  it  simply 
orders  them  to  render  a  written  opinion  in  each  case  within  six  months 
after  it  has  been  submitted.  This  may  have  the  salutary  effect  of  abbre- 
viating the  absurdly  long  opinions  which  our  courts  are  prone  to  inflict 
on  the  suffering  public ;  at  all  events  it  will  prove  an  interesting 
experiment.* 

II.  Special  Restrictions  on  the  Authorities  of  the  State 

The  crowning  restriction  on  the  delegated  authorities  of  the  state  is 
the  express  retention  of  the  lawmaking  power  in  the  hands  of  the  voters 
through  a  system  of  initiative  and  referendum.  This  newer  contrivance 
of  institutional  democracy  has  already  found  its  way  into  the  constitutions 
of  many  states ;  and  Oklahoma  has  followed  the  example  of  Oregon  so 
closely  that  almost  the  exact  words  of  the  amendment  adopted  in  that 
state  in  1902  have  been  accepted: 

1  Procccdinc^s  of  t lie  American  Political  Science  Association,  1907,  p.  105. 

2  Ibid.  p.  103.  8  Dcalcy,  op.  cit.  p.  41. 

*  It  is  estimated  that  there  arc  in  America  alone  over  six  thtnisand  volumes  of  decisions, 
and  that  from  one  to  two  himdred  volumes  are  being  atlded  annually  (/'rocccilini^s  of  the 
American  /'olitical  Science  Association,  1907,  p.  S3).  Certainly  it  is  time  to  restrict  the 
loquacity  of  our  law  speakers. 


CONSTITUTIONAL  CONVENTIONS  453 

The  legislative  authority  of  the  state  shall  be  vested  in  a  legislature,  consist- 
ing of  a  Senate  and  a  House  of  Representatives ;  but  the  people  reserve  to 
themselves  the  power  to  propose  laws  and  amendments  to  the  constitution  and 
to  enact  and  reject  the  same  at  the  polls  independent  of  the  legislature,  and 
also  reserve  power  at  their  own  option  to  approve  or  reject  at  the  polls  any  act 
of  the  legislature. 

Even  the  Oregon  requirement  as  to  the  title  of  the  bills  has  been  adopted, 
and  the  style  of  all  measures  is  to  be,  "  Be  it  enacted  by  the  people  of 
the  state  of  Oklahoma";  and  further  to  demonstrate  the  majesty  of  the 
people,  the  veto  power  of  the  governor  shall  not  extend  to  measures 
voted  on  by  them. 

An  ordinary  legislative  measure  may  be  initiated  by  8  per  cent  of 
the  legal  voters  and  ratified  by  a  simple  majority  of  those  voting  in  the 
election  at  which  the  particular  proposition  is  submitted.  The  initiation 
of  a  constitutional  amendment  requires  15  per  cent  of  the  voters, 
and  goes  into  force  when  approved  by  "a  majority  of  the  votes  cast 
thereon."  Thus  it  may  happen  that  a  small  proportion  of  the  total  num- 
ber of  voters  may  effect  a  fundamental  revolution  in  the  political  system 
of  the  state.  This  provision  is  doubtless  based  on  practical  experience  — 
on  the  popular  indifference  manifested  in  many  states  to  proposals  referred 
for  approval.  If  a  majority  of  all  the  legal  voters  were  required,  it  might 
mean  the  defeat  of  almost  every  measure  submitted.'^  To  prevent  the 
constant  use  of  the  initiative  by  persistent  minorities  as  a  means  of  agita- 
tion, it  is  provided  that  no  measure  rejected  by  popular  vote  may  again 
be  proposed  within  three  years  thereafter  by  less  than  25  per  cent  of 
the  legal  voters. 

All  acts  of  the  legislature,  except  laws  necessary  for  the  immediate 
preservation  of  the  public  peace,  health,  or  safety,  must  be  referred  to 
the  people  on  a  petition  of  5  per  cent  of  the  legal  voters,  or  on  the 
order  of  the  legislature  itself.  The  referendum  petition  must  be  filed 
with  the  Secretary  of  State  not  more  than  ninety  days  after  the  adjourn- 
ment of  the  session  of  the  legislature  which  passed  the  act  in  question ; 
and  a  majority  of  those  voting  on  the  measure  is  sufficient  for  approval 
or  rejection.  The  referendum  may  be  demanded  on  one  or  more  items 
or  sections  or  parts  as  well  as  on  the  whole  bill ;  and  to  give  the  people 
time  to  prepare  petitions,  no  act  (except  one  carrying  into  effect  the 
initiative  and  referendum  provisions  of  the  constitution  or  a  general 
appropriation  bill)  can  go  into  effect  until  ninety  days  have  elapsed 
after  adjournment,  unless  in  case  of  emergency.    The  existence  of  an 

1  On  an  amendment  submitted  to  the  voters  of  Kansas  in  1906  only  60,000  votes  were 
cast  out  of  a  total  of  300,000  polled  by  the  candidates  for  governor.  In  the  same  year  an 
amendment  to  the  constitution  of  Indiana  was  voted  on  by  only  one  twelfth  of  the  voters 
who  went  to  the  polls.  In  the  same  year  in  Louisiana  several  important  amendments  were 
adopted  by  a  vote  of  one  sixth  of  the  electorate.  (J.  W.  Gamer,  in  Proceedings  of  the  Amer- 
ican Political  Science  Association^  1907,  p.  171.)  See,  however,  the  large  vote  polled  on  ref- 
erenda in  Oregon.    (Biennial  Report  of  the  Secretary  of  State,  1907,  p.  6Sa.) 


454  AMERICAN   STATE  GOVERNMENT 

emergency  is  determined  by  a  two-thirds  vote  of  all  the  members  elected 
to  each  House,  the  governor  concurring.  When  executive  disapproval  is 
incurred,  declarations  of  emergency  must  have  a  vote  of  three  fourths  of 
the  members  of  each  House.  As  a  result,  probably,  of  the  experience  of 
South  Dakota,^  emergency  acts  are  expressly  limited  to  such  measures  as 
are  immediately  necessary  for  the  preservation  of  public  health,  peace,  or 
safety ;  and  they  may  not  include  the  granting  of  franchises  or  licenses 
to  corporations  or  individuals  to  extend  for  more  than  one  year,  nor  pro- 
visions for  the  purchase  or  sale  of  real  estate,  nor  the  renting  or  incum- 
brance of  real  property  for  more  than  one  year. 

Special  and  local  legislation  is  one  of  those  thorny  problems  that 
apparently  can  neither  be  solved  nor  be  let  alone."  In  this  matter  Okla- 
homa has  borrowed  from  her  sister  commonwealth  of  Arkansas  the 
check  of  publicity.  No  special  or  local  law  can  be  considered  by  the 
legislature  until  notice  of  the  intended  introduction  of  the  proposed  bill, 
stating  in  substance  the  contents  thereof,  is  first  printed  for  four  con- 
secutive weeks  in  some  weekly  newspaper  published  or  having  general 
circulation  in  the  city  or  county  affected  by  the  bill.  This  requirement 
seems  to  insure  adequate  publicity,  and  it  will  probably  prevent  that 
surreptitious  publication  which,  as  Professor  Dealey  points  out,  may  very 
well  defeat  the  operation  of  an  otherwise  excellent  plan.  This  general 
restriction  is  further  supplemented  by  a  long  list  of  particular  subjects 
on  which  special  legislation  is  forbidden  except  as  otherwise  provided. 

To  secure  a  wholesome  separation  of  politics  from  private  economy, 
it  is  ordered  that  a  member  of  the  legislature  who  has  a  personal  or 
private  interest  in  any  measure  or  bill  proposed  or  pending  before  the 
legislature  must  disclose  the  fact  to  the  House  of  which  he  is  a  member 
and  must  not  vote  thereon.  Furthermore,  no  member,  during  the  term 
for  which  he  is  elected  or  within  two  years  after  its  expiration-,  shall  be 
interested  directly  or  indirectly  in  any  contract  with  the  state,  or  with  a 
county  or  subdivision  thereof,  authorized  by  any  law  passed  during  his 
time  of  service.  For  the  species  of  corruption  which  this  provision  aims 
to  prevent,  the  penalty  is  expulsion  ;  and  expulsion  for  this  cause  renders 
the  member  forever  ineligible  for  election  to  either  House. 

The  rule,  now  approved  by  the  experience  of  several  states,  that  the 
general  appropriation  bill  shall  contain  nothing  but  appropriations  for 
the  expenses  of  the  executive,  legislative,  and  judicial  de|)artments  of 
the  state  and  for  interest  on  the  public  debt,"  is  adopted.  Moreover,  no 
revenue  bill  can  be  passed  during  the  last  five  days  of  the  session.  From 
among  the  variety  of  expedients  designed  to  limit  the  taxing  power  of 
the  legislature,'  Oklahoma  has  selected  a  maximum  rate  of  thirty-one 
and  one-half  mills  on  the  dollar  and  the  assessment  of  all  property  taxable 

1  State  ex  rel.  I.avin,  ct  al.  ts.  Uacon  (k^oi),  i.)  S.  I),  jcj.}.       -  l)c:i!cy,  op.  cit.  jjp.  51-54. 

8  Keinsch,  American  Ixgislalurcs  and  Lcgislalive  Methods,  p.  i.S(j. 

*  Agger,  The  lludget  in  the  American  Commonwcaltlis  (Columbia  Studies),  p.  35. 


CONSTITUTIONAL  CONVENTIONS  455 

ad  valorem  on  the  basis  of  a  fair  cash  value.  Provision  is  made  that  the 
state  may  select  its  objects  of  taxation  and  levy  its  revenues  independent 
of  the  counties,  cities,  or  other  municipal  subdivisions  ;  but  this  separation 
of  sources  of  revenue,  which  is  clearly  the  tendency  in  the  most  advanced 
commonwealths,  is  not  made  obligatory  upon  the  legislature.  Lest  that 
inherent  power  which  abides  in  the  legislature  should  not  be  deemed 
sufficient  warrant  for  any  radical  schemes  of  taxation  that  the  future  may 
bring  forth,  it  is  expressly  stipulated  that  the  legislature  shall  have  author- 
ity to  levy  license,  franchise,  gross  revenue,  excise  and  income  taxes, 
collateral  and  direct  inheritance,  legacy  and  succession  taxes,  graduated 
income  taxes,  graduated  collateral  and  direct  inheritance  taxes,  graduated 
legacy  and  succession  taxes,  stamp,  registration,  production,  or  other 
specific  taxes.  The  work  of  equalization  is  intrusted  to  a  state  board 
composed  of  the  governor,  auditor,  Secretar)'  of  State,  attorney-general, 
state  inspector  and  examiner,  and  the  president  of  the  board  of  agriculture. 
Two  ver}^  significant  limitations  on  the  authorities  of  the  state  are 
embodied  in  the  clauses  relating  to  habeas  corpus  and  injunctions.  Defy- 
ing what  seem  to  be  "  the  plain  teachings  of  histor}-,"  that  summary  and 
drastic  powers  must  occasionally  be  wielded  by  some  officer  of  the  state, 
Oklahoma  has  firmly  declared  that  "  the  privilege  of  the  writ  of  habeas 
corpus  shall  never  be  suspended  by  the  authorities  of  this  state."  This 
subordination  of  military  to  civil  authority  in  the  matter  of  the  great 
prerogative  writ  is  accompanied  by  a  positive  limitation  on  the  power  of 
the  judiciar)-  in  the  granting  of  injunctions.  The  legislature,  the  consti- 
tution declares,  shall  pass  laws  defining  contempts  and  regulating  pro- 
ceedings and  punishments  in  cases  of  contempt;  but  every  person 
accused  of  violating  or  disobeying  an  injunction  out  of  the  presence  or 
hearing  of  the  court  is  to  be  entitled  to  trial  by  jury  to  determine  his 
guilt  or  innocence,  and  in  no  case  shall  penalty  or  punishment  be  imposed 
for  contempt  until  the  accused  has  had  an  opportunity  to  be  heard. 

III.  Municipal  and  Local  Government 

In  the  attempt  to  secure  for  towns  and  cities  a  large  degree  of  "  home 
rule,"  Oklahoma  has  adopted  the  system  which  has  been  instituted  in 
Missouri,  California,  Colorado,  Washington,  and  Tvlinnesota,  namely,  that 
of  allowing  certain  municipalities  to  draft  their  own  charters  without  legis- 
lative interference.  Any  city  in  Oklahoma  containing  a  population  of 
more  than  two  thousand  inhabitants  may  place  the  framing  of  its  charter 
in  the  hands  of  a  board  of  freeholders  elected  by  the  qualified  voters  of 
the  place  ;  and  the  document  drafted  by  this  municipal  convention,  when 
ratified  by  popular  vote  and  approved  by  the  governor,  becomes  the 
organic  law  of  the  city.  Amendments  to  the  charter  may  be  made  by  the 
processes  of  initiative  and  referendum  described  in  the  next  paragraph, 
but  these  also  require  the  approval  of  the  governor.    The  municipal 


456  AMERICAN   STATE  GOVERNMENT 

charter  is,  of  course,  subject  to  the  constitution  and  laws  of  the  state  ;  and 
the  courts,  when  called  upon  to  adjust  conflicts  over  state  and  municipal 
functions,  will  find  numerous  precedents  for  their  guidance  in  the  experi- 
ences of  other  states  where  this  mode  of  charter  enactment  is  in  force. -^ 

Not  only  do  the  voters  of  the  municipality  control  their  own  charter- 
making,  they  retain  supervisor)'  powers  over  their  agents  by  means  of 
the  initiative  and  referendum.  Petitions  initiating  municipal  measures  or 
requiring  referenda  must  be  signed  by  25  per  cent  of  the  number 
of  persons  who  voted  at  the  election  just  preceding.  If  the  petition 
demands  the  enactment  of  an  ordinance  or  a  legal  act  other  than  the 
grant,  extension,  or  renewal  of  a  franchise,  it  is  presented  to  the  munici- 
pal council,  and,  if  approved  there,  becomes  law  without  further  reference 
to  the  voters.  If  it  is  rejected  by  the  council,  it  must  be  referred  to  the 
voters,  and  will  go  into  effect  if  approved  by  the  majority  of  those  who 
vote  thereon. 

This  popular  supervision  is  developed  to  the  highest  degree  in  the 
matter  of  franchises.  No  municipal  corporation  can  grant,  extend,  or 
renew  a  franchise  without  submitting  the  measure  to  the  people,  and  the 
proposed  measure  must  receive  the  approval  of  a  majority  of  the  quali- 
fied voters  residing  within  the  corporate  limits.  Furthermore,  the  definite 
term  of  twenty-five  years  is  fixed  for  all  such  grants,  renewals,  or  exten- 
sions, and  every  municipal  corporation  in  the  state  is  given  the  right  to 
undertake  any  business  or  enterprise  which  may  be  engaged  in  by  any 
person,  firm,  or  corporation  by  virtue  of  a  franchise  from  the  city.  No 
exclusive  franchises  can  be  granted,  and  the  power  to  regulate  the  use 
and  enjoyment  of  franchises,  as  well  as  the  charges  made  for  public  ser- 
vices, is  expressly  retained. 

In  the  sections  relating  to  local  government,  the  point  of  special 
interest  is  the  extension  of  the  principle  of  the  initiative  and  referendum 
to  the  county  and  its  subdivisions,  as  regards  all  local  ordinances. 

IV.  Provisions  relating  to  Corporations  and  Labor 

The  spirit  of  fierce  opposition  to  monopolies  and  that  jealousy  of  large 
business  enterprises  which  have  filled  the  statute  books  of  western  states 
with  drastic  measures,  appear  in  almost  every  article  of  the  Oklahoma 
constitution.  In  the  Piill  of  Rights,  perpetuities  and  monopolies  are  declared 
to  be  contrary  to  the  genius  of  a  free  government,  and  corporations  are 
excluded  from  several  of  the  privileges  and  immunities  seciuvd  to  natural 
persons.  Remembering,  doubdess,  that  many  men,  eminent  for  their 
administrative  capacities,  are  prone  to  forget  business  cares  in  the  pres- 
ence of  investigating  committees,  the  framers  of  Oklahoma's  fundamental 
law  have  provided  for  unrestricted  searches  into  the  actual  transactions 
of  corporations  by  explicitly  stating  that  the  records,  books,  and  files  of 
1  Goodnow,  City  Government  in  the  United  States,  p.  93. 


CONSTITUTIONAL  CONVENTIONS  457 

all  corporations  shall  be  at  all  times  subject  to  the  full  visitorial  and 
inquisitorial  powers  of  the  state,  notwithstanding  the  rights  secured  to 
persons  and  to  citizens.  And  to  refresh  the  memory  of  witnesses,  it  is 
ordered  that  no  person  having  knowledge  of  facts  tending  to  establish 
the  guilt  of  any  other  person  or  corporation  charged  with  an  offense 
against  the  laws  of  the  state  shall  be  excused  from  presenting  it  on  the 
ground  that  it  might  incriminate  himself  ;  but  immunity  from  prosecution 
and  punishment  is  guaranteed  to  persons  so  testifying.  Lest  the  legis- 
lature should  perchance  overlook  the  matter,  it  is  expressly  ordered  to 
enact  laws  defining  unlawful  combinations,  monopolies,  trusts,  and  acts 
and  agreements  in  restraint  of  trade,  and  to  provide  for  the  punishment 
of  offenders. 

The  realization  of  these  policies  is,  however,  by  no  means  left  to  the 
uncontrolled  devices  of  the  legislature.  The  constitution  creates  a  cor- 
poration commission,  composed  of  three  members  elected  for  terms  of 
six  years  by  popular  vote,  one  of  them  retiring  every  tw^o  years.  In  all 
matters  pertaining  to  the  public  visitation,  regulation,  or  control  of  cor- 
porations and  within  its  jurisdiction,  the  commission  has  the  powers  and 
authority  of  a  court  of  record,  and  may  administer  oaths  and  compel  the 
attendance  of  w^itnesses  and  the  production  of  papers.  It  may  punish  for 
contempt  any  person  guilty  of  disorderly  or  disrespectful  conduct  in  its 
presence,  and  may  enforce  compliance  with  its  lawful  orders  and  require- 
ments by  imposing  fines  and  penalties  provided  by  law  —  always  after 
affording  due  process  to  the  party  or  parties  affected. 

The  powers  of  the  commission  leave  nothing  to  be  added.  It  is  charged 
with  the  duty  of  supervising,  regulating,  and  controlling  all  transportation 
and  transmission  companies  doing  business  within  the  state,  in  all  matters 
relating  to  the  performance  of  their  public  duties  and  their  charges  there- 
for. It  is  also  to  correct  abuses  and  to  prevent  unjust  discrimination  and 
extortion  by  such  companies  ;  and,  in  order  to  fulfill  its  general  purposes, 
it  is  instructed  to  prescribe  and  enforce,  against  the  various  concerns 
coming  within  its  supervision,  reasonable  and  just  rates,  charges,  classifi- 
cations, rules,  regulations,  and  requirements. 

Ample  provision  is  made  for  collection  of  the  information  concerning 
the  business  of  the  companies  which  may  be  required  in  the  discharge  of 
the  obligations  imposed  upon  the  commission.  It  is  empowered,  at  all 
times,  to  inspect  the  books  and  papers  of  transportation  and  transmission 
companies  doing  business  within  the  state,  and,  furthermore,  to  require 
such  companies  from  time  to  time  to  make  special  reports  under  oath 
concerning  their  affairs.  The  commission  is  instructed  to  keep  itself  fully 
informed  on  the  physical  condition  of  all  the  railroads  of  the  state  and  the 
manner  in  which  they  are  operated,  with  reference  to  the  security  and 
accommodation  of  the  public ;  and  it  must  take  measures  "  to  prevent 
unjust  or  unreasonable  discrimination  and  extortion  in  favor  of  or  against 
any  person,  locality,  community,  connecting  line,  or  kind  of  traffic,  in  the 


458  AMERICAN  STATE  GOVERNMENT 

matter  of  car  service,  train  or  boat  schedule,  efficiency  of  transportation 
or  transmission."  In  tlie  exercise  of  tliis  enormous  supervisory  power, 
the  commission  is  controlled  by  elaborate  provisions  requiring  due  process 
in  the  matter  of  notice,  hearing,  and  appeal  to  the  courts. 

Not  content  with  prescribing  general  regulations  for  the  commission 
and  leaving  the  rest  to  the  legislature,  the  framers  of  the  constitution 
have  embodied  in  the  fundamental  law  many  express  provisions  controll- 
ing matters  of  detail.  In  the  first  place,  they  have  ordered  that  the  whole 
physical  structure  of  the  railway  and  public-service  business  shall  be  laid 
bare  —  one  is  tempted  to  say,  naked  —  before  the  public.  The  commis- 
sion must  ascertain  and  keep  as  a  matter  of  public  record  the  amount  of 
money  expended  in  the  construction  and  equipment  per  mile  of  every 
railroad  and  public-service  corporation  in  Oklahoma,  the  amount  of  money 
expended  to  secure  the  right  of  way,  and,  furthermore,  the  amount  of 
money  it  would  require  to  reconstruct  the  road  bed,  track,  depots,  and 
transportation  facilities,  and  to  replace  all  the  physical  properties  belong- 
ing to  the  railroad  or  public-service  corporation.  The  commission  must 
also  ascertain  the  outstanding  bonds,  debentures,  and  indebtedness,  and 
the  amount  thereof;  when  issued  and  the  rate  of  interest;  when  due; 
for  what  purposes  issued ;  how  used ;  to  whom  issued ;  to  whom  sold, 
and  the  price  in  cash,  property,  or  labor  (if  any)  received  therefor ;  what 
became  of  the  proceeds ;  by  whom  the  indebtedness  is  held,  and  the 
amount  purporting  to  be  due  thereon ;  the  floating  indebtedness  of  the 
company,  to  whom  due,  and  the  residence  of  the  creditor ;  the  credits  due 
on  it ;  the  property  on  hand ;  and,  finally,  the  judicial  or  other  sales  of 
the  said  road,  its  property,  or  franchises,  and  the  amounts  purporting  to  be 
paid  therefor.  After  having  thoroughly  analyzed  the  physical  structure  of 
the  system,  the  commission  must  ascertain  the  salaries  and  wages  paid 
by  the  railroads  and  public-service  corporations. 

The  present  status  of  railway  and  public-service  corporations  is  thus 
to  be  carefully  and  minutely  described,  and  then  the  future  is  to  be  safe- 
guarded. It  is  expressly  ordered  that  no  corporation  shall  issue  stock 
except  for  money,  labor  done,  or  property  actually  received  to  the  amount 
of  its  par  value ;  all  fictitious  issues  of  stock  or  indebtedness  are  void ; 
stock  and  bonded  indebtedness  shall  not  be  increased  except  in  accord- 
ance with  the  general  law  and  with  the  consent  of  the  persons  holding 
the  larger  amount  in  value  of  the  stock  duly  obtained  at  a  meeting  held 
after  thirty  days'  notice.  Each  railway  and  public-service  corporation 
doing  business  in  the  state  must,  in  addition,  maintain  a  public  office 
where  its  business  shall  be  transacted,  stock  transfers  recorded,  with  the 
amount  paid  and  the  names  of  the  owners,  and  books  kept  showing 
the  assets  and  liabilities  of  the  concern.  The  directors  of  such  corpora- 
tions must  meet  annually  after  due  notice  and  make  reports  as  required 
by  law. 

After  ordering  physical  valuation  and  prescribing  these  rules  designed 


CONSTITUTIONAL  CONVENTIONS 


459 


to  prevent  stock-watering,  the  Oklahoma  constitution  makers  lay  down 
some  very  particular  regulations  concerning  the  management  and  conduct 
of  corporate  business.  In  the  first  place,  there  are  to  be  no  mergers  in 
the  state,  except  under  specific  conditions.  No  public-service  corporation 
can  consolidate  its  stock,  property,  or  franchises  with,  or  lease  or  purchase 
the  works  or  franchises  of,  or  in  any  other  way  control  any  other  public- 
service  corporation  owning  or  having  under  its  control  a  competing  or 
parallel  line,  except  by  legislative  enactment  upon  recommendation  of  the 
corporation  commission.  Furthermore,  the  legislature  is  expressly  for- 
bidden to  authorize  such  consolidations  with  corporations  organized  under 
the  laws  of  other  states  or  the  United  States  and  holding  or  controlling 
competing  lines  in  Oklahoma.  No  railway,  transportation,  or  transmis- 
sion corporation  can  under  any  circumstances  consolidate  with  concerns 
organized  out  of  the  state. 

Turning  to  corporations  in  general,  the  constitution  provides  that  no 
corporation  chartered  or  licensed  to  do  business  in  the  state  shall  hold, 
own,  or  control  in  any  manner  whatever  the  stock  of  any  competitive  cor- 
poration or  corporations  engaged  in  the  same  kind  of  business  in  or  out 
of  the  state,  except  such  stock  as  may  be  pledged  in  good  faith  to  secure 
bona  fide  indebtedness,  and  in  such  cases  the  said  stock  must  be  sold 
within  twelve  months.  In  fact,  the  competitive  system  is  to  be  maintained 
in  every  field  of  business  ;  for,  until  otherwise  provided  by  law,  no  person, 
firm,  association,  or  corporation  engaged  in  the  production,  manufacture, 
or  sale  of  any  commodity  of  general  use  may  attempt  to  destroy  compe- 
tition or  create  a  monopoly  by  discriminating  between  persons,  associa- 
tions, corporations,  different  sections,  communities,  or  cities  of  the  state, 
or  by  selling  lower  under  some  circumstances  than  others,  due  allow- 
ance being  made  for  cost  of  transportation  and  difference  in  grade  and 
quantity. 

Though  competition  is  to  be  upheld  in  the  railway  business,  its  full 
consequences  are  not  to  be  accepted.  A  flat  rate  of  two  cents  a  mile  for 
carrying  passengers  is  imposed  until  otherwise  provided  by  law,  subject 
to  the  reservation  that  the  corporation  commission  may  exempt  any  rail- 
road from  the  operation  of  this  restriction  if  it  can  be  shown  that  a  just 
compensation  cannot  be  earned  under  it.  Moreover,  cooperation  among 
competing  concerns,  subject  to  state  supervision,  is  made  mandatory. 
Every  railroad,  oil-pipe,  car,  express,  telephone,  or  telegraph  corporation 
or  association  authorized  to  do  a  transportation  or  transmission  business 
within  the  state  shall  have  the  right  to  intersect,  connect  with,  or  cross 
any  other  road  or  line.  All  railroad,  car,  or  express  companies  must 
receive  and  transport  one  another's  cars,  tonnage,  or  passengers,  without 
delay  or  discrimination,  under  the  super\'ision  of  the  corporation  com- 
mission. All  telephone  and  telegraph  lines,  operated  for  hire,  shall  receive 
and  transmit  one  another's  messages  and  make  physical  connections 
under  the  rules  prescribed  by  law. 


460  AMERICAN   STATE  GOVERNMENT 

And  finally  there  is  inserted  a  clause  whose  requirements  will  cause 
readjustments  as  far  away  as  New  Jersey.  No  corporation,  foreign  or 
domestic,  can  do  business  within  the  state  without  first  filing  with  the 
corporation  commission  a  list  of  its  stockholders,  officers,  and  directors, 
with  the  residence  and  post-office  address  of  each  and  the  amount  of 
stock  held  by  each.  And  ever}'  foreign  corporation,  before  being  licensed 
to  do  business,  must  designate  an  agent  residing  in  the  state  on  whom 
summons  or  other  legal  notice  may  be  served.  No  foreign  insurance 
company  may  receive  a  hcense  or  do  business  within  the  state  until  it 
has  complied  with  the  laws  of  the  state  and  has  deposited  such  collateral 
or  indemnity  for  the  protection  of  its  patrons  within  the  commonwealth 
as  may  be  prescribed  by  the  legislature.  It  must  also  agree  to  pay  the 
taxes  and  fees  imposed  by  law. 

The  farmers  are  to  be  specially  protected  from  the  real-estate  corpora- 
tions by  a  unique  process.  No  corporation  may  be  created  or  licensed  in 
the  state  for  the  purpose  of  dealing  in  real  estate  other  than  that  located 
in  incorporated  towns  and  cities  or  additions  thereto.  Corporations  in 
general  are  not  precluded  from  acquiring  titles  by  the  foreclosure  of 
mortgages,  but  they  must  dispose  of  property  so  acquired  within  a  period 
of  seven  years.  Public-service  corporations  may  not  hold  any  land  except 
such  as  is  indispensable  to  the  transaction  of  their  necessary  business. 

The  familiar  claims  of  labor  are  met  in  the  spirit  of  the  motto  inscribed 
upon  the  seal  of  the  state,  —  Labor  omnia  vincit.  Eight  hours  shall  con- 
stitute a  day's  work  in  all  cases  of  employment  by  and  on  behalf  of  the 
state  or  any  county  or  municipality,  —  a  provision  which  extends  the 
eight-hour  rule  to  workmen  employed  by  contractors  in  the  service  of 
the  government,  state  and  local.  The  contracting  of  convict  labor  is 
prohibited.  The  use  of  the  injunction,  as  remarked  above,  is  carefully 
restricted ;  and  the  common-law  doctrine  of  the  fellow  ser\'ant,  so  far  as 
it  affects  the  liability  of  the  master  for  injuries  to  his  servant  resulting 
from  acts  or  omissions  of  any  other  servant  or  servants  of  the  common 
master,  is  abrogated  as  to  every  emplovee  of  every  railroad  company, 
street  railway  compan)-,  interurban  railway  company,  and  of  every  person, 
firm,  or  corporation  engaged  in  mining  in  the  state.  The  defense  of  con- 
tributory negligence  or  of  assumption  of  risk  shall,  in  all  cases  whatso- 
ever, be  a  question  of  fact  for  tlie  jury.  The  right  of  action  to  recover 
damages  for  injuries  resulting  in  death  shall  never  be  abrogated,  and  the 
amount  recoverable  shall  never  be  subjected  to  statutory  limitations.  No 
rights  under  the  constitution  can  ever  be  waived  by  contract,  express  or 
implied. 

The  constitution  creates  a  department  of  labor,  headed  by  a  commis- 
sioner elected  for  a  term  of  four  years  by  popular  vote.  It  also  commands 
the  legislature  to  establish  a  board  of  arbitration  and  conciliation  in  the 
department  of  labor,  with  the  commissioner  at  its  head.  The  general  con- 
ditions of  industrial  arbitration  are  left  to  the  discretion  of  the  legislature, 


CONSTITUTIONAL  CONVENTIONS  46 1 

except  that  every  license  or  charter  granted  to  a  mining  or  public-service 
corporation,  foreign  or  domestic,  shall  contain  a  stipulation  to  the  effect  that 
such  corporation  will  submit  to  arbitration  differences  with  its  employees 
in  reference  to  labor. 

The  legislature  is  ordered  to  pass  laws  to  protect  the  health  and  safety 
of  employees  in  factories,  in  mines,  and  on  railroads.  Two  clauses  are 
added  on  the  subject  of  child  and  woman  labor.  The  employment  of 
children  in  any  occupation  injurious  to  health  and  morals,  or  especially 
hazardous  to  life  or  limb,  is  prohibited.  Boys  under  sixteen  and  women 
and  girls  are  prevented  from  working  underground  in  the  mines.  Follow- 
ing the  well-established  precedents  of  other  states,  it  is  provided  that 
eight  hours  sha"  v.cxnstitute  a  day's  work  in  all  mines  within  the  state. 

V.  Miscellaneous 

Lest  the  Oklahoma  lawmakers  should  not  prove  amenable  to  the 
growing  pressure  of  public  opinion,  which  has  so  recently  placed  elaborate 
primary  laws  upon  the  statute  books  of  Wisconsin,  Illinois,  Kansas,  New 
Jersey,  and  many  other  states,  the  constitution  makes  it  mandatory  upon 
the  legislature  to  enact  laws  creating  a  compulsory  primary  system,  which 
shall  provide  for  the  nomination  of  all  candidates  in  all  elections  for  state, 
district,  county,  and  municipal  ofificers,  including  United  States  senators, 
and  which  shall  apply  to  all  political  parties,  reserving  of  course  to  the 
people  the  right  to  name  nonpartisan  candidates  by  petition.  The  com- 
pletion of  the  plan  for  popular  election  is  left  to  the  legislature.  All 
corporations  organized  or  doing  business  within  the  state  are  forbidden 
to  influence  elections  or  official  duty  by  the  contribution  of  money  or 
anything  of  value. 

Both  in  the  Bill  of  Rights  and  in  the  body  of  the  constitution  there  are 
several  departures  from  the  traditional  Anglo-Saxon  legal  doctrines ;  but 
most  if  not  all  find  precedents  in  the  newer  constitutions  of  other  states 
and  thereby  fall  in  with  certain  general  tendencies  in  American  legal 
evolution.  Prosecution  for  felony  and  misdemeanor  by  information  as 
well  as  by  indictment  is  expressly  sanctioned  ;  but  no  one  may  be  prose- 
cuted by  information  for  felony  without  having  first  had  a  preliminary 
hearing  before  an  examining  magistrate  or  having  waived  such  hearing. 
When  the  grand  jury  is  employed,  the  concurrence  of  nine  men  out  of 
twelve  is  sufficient  for  the  return  of  a  true  bill.  In  county  courts  and 
courts  not  of  record  the  petty  jury  shall  consist  of  six  men ;  and  in  civil 
cases  and  criminal  cases  involving  crimes  less  than  felonies  three  fourths 
of  the  whole  number  of  jurors  may  render  a  verdict.  The  provision 
relating  to  criminal  libel  is  the  same  as  that  contained  in  the  constitutions 
of  the  more  conservative  states,  for  example  in  that  of  New  York.  In 
all  criminal  prosecutions  for  libel,  the  truth  of  the  matter  alleged  to  be 
libelous  may  be  given  in  evidence  to  the  jury,  and  if  it  appear  to  the  jury 


462  AMERICAN   STATE  GOVERNMENT 

that  the  matter  charged  as  libelous  is  true  or  was  written  with  good 
motives  and  for  justifiable  ends,  the  party  shall  be  acquitted.  The  rule  of 
law  that  a  person  is  not  required  to  give  evidence  tending  to  incriminate 
himself  when  testifying  against  any  other  person  or  corporation  is  abro- 
gated, and  the  "  immunity  bath  '  is  substituted,  as  has  been  pointed  out 
above.  Likewise  the  common-law  doctrine  of  the  fellow  sei^vant  has  been 
set  aside  in  certain  cases  mentioned  above,  and  the  defense  of  contribu- 
tory negligence  is  declared  to  be  a  question  of  fact  to  be  submitted  to 
the  jury. 

The  Oklahoma  constitution  does  not  show  quite  that  "wholesome 
anxiety  to  protect  and  safeguard  private  property  in  every  way  "  which 
Mr.  Br)'ce  observ-ed  as  one  of  the  excellent  features  in  American  consti- 
tutional development.  It  is  true  that  it  contains  express  provision  that 
"  private  property  shall  not  be  taken  or  damaged  for  public  use  without 
just  compensation";  but  at  the  same  time  it  declares  that  "  the  right  of 
the  state  to  engage  in  any  occupation  or  business  for  public  purposes 
shall  not  be  denied  or  prohibited,  except  that  the  state  shall  not  engage 
in  agriculture  for  any  other  than  educational  and  scientific  purposes  and 
for  the  support  of  its  penal,  charitable,  and  educational  institutions,"  — 
an  exception  clearly  bucolic  in  its  origin.  Also  eveiy  municipal  corpora- 
tion, as  has  been  indicated,  may  engage  in  any  business  or  enterprise 
which  might  be  carried  on  privately  under  a  franchise  from  the  city.  In 
case  the  state  should  engage  in  business  on  such  a  large  scale  as  to  de- 
stroy the  enterprises  of  private  persons,  would  claims  for  compensation 
lie  against  it,  or  would  the  Oklahoma  courts  extend  to  the  body  politic 
that  principle  laid  down  by  the  English  courts  with  reference  to  private 
corporations,  namely  that  damages  arc  not  recoverable  for  injur\'  done 
in  the  ordinary  course  of  competition  ?  ^ 

There  are  also  evidences  of  that  philanthropy  and  humanitarianism 
which  Mr.  Bryce  declared  to  be  mingled  in  our  stale  politics  with  folly 
and  jobbery  "  like  threads  of  gold  and  silver  woven  across  the  warp  of 
dirty  sacking."  l^ducational  and  reformatory  institutions,  those  for  the 
benefit  of  the  insane,  blind,  deaf  and  mute,  and  such  other  institutions  as 
"  the  public  good  may  require,"  are  to  be  established  and  supported  by 
law.  The  creation  of  a  system  of  free  schools  and  compulsory  education 
in  the  common  branches  is  made  obligatory  on  the  legislature.  The 
manufacture  and  sale  of  liquor  as  a  beverage  are  forbidden.  There  is  a 
generous  exemption  of  homesteads  from  forced  sales,  except  for  (lie  pay- 
ment of  purchase  money,  improvement  charges,  taxes,  and  mortgages. 
The  legal  rate  of  interest  in  the  absence  of  contract  is  fixed  at  6  per 
cent,  and  the  maximum  rate  is  placed  at  10  per  cent.  Laws  are  to  be 
enacted,  as  pointed  out  above,  for  ihe  jMotection  of  the  health  of 
employees  in  mines,  factories,  and  on  lailways,  and  for  the  protection 
of  women  and  cliiklien  in  industries,  it  is  not  only  the  state  that  assumes 
1  Webb,  Industrial  Democracy  (edition  of  1902),  p.  xxix, 


CONSTITUTIONAL  CONVENTIONS  463 

humanitarian  obligations ;  the  several  counties  shall  provide,  under  the 
general  prescriptions  of  the  law,  "  for  those  inhabitants  who,  by  reason 
of  age,  infirmity,  or  misfortune,  have  claims  upon  the  sympathy  and  aid 
of  the  county."' 

Two  or  three  clauses  set  us  to  wondering  whether  Oklahoma  imagines 
that  Calhoun  is  still  alive.  The  first  section  of  the  first  article  declares 
that  "  the  state  of  Oklahoma  is  an  inseparable  part  of  the  Federal 
Union,"  as  if  some  Buchanan  in  the  President's  chair  at  Washington 
might  forget  it  in  case  of  an  incipient  movement  for  secession.^  In  the 
same  section  it  is  expressly  acknowledged  that  the  "  Constitution  of  the 
United  States  is  the  supreme  law  of  the  land";  but  treaties  and  laws 
made  in  accordance  with  that  Constitution  are  omitted.  Perhaps  because 
Congress  is  seen  to  be  dilatory  in  enforcing  the  suffrage  section  of  the 
Fourteenth  Amendment  (the  Republican  platform  of  1904  notwithstand- 
ing), Oklahoma  includes  in  her  constitution  the  Fifteenth  Amendment. 
The  article  regulating  corporations  is  expressly  restricted  in  its  application 
so  as  not  to  conflict  with  any  of  the  provisions  of  the  Constitution  of  the 
United  States ;  the  obligation  of  contract  shall  not  be  impaired,  and  due 
process  must  run  everywhere  throughout  the  state.  Finally,  in  reserving 
to  the  people  the  right  to  alter  this  constitution  in  the  future,  Section  i 
of  the  Bill  of  Rights  warns  them  that  such  changes  as  may  be  made 
must  not  be  repugnant  to  the  fundamental  law  of  the  United  States. 

In  its  provisions  for  amendment,  the  Oklahoma  constitution  seems  to 
comply  in  general  with  the  canons  recently  laid  down  by  Professor  Gar- 
ner in  a  careful  comparative  study."  It  provides  in  the  first  place  for  the 
two  ordinary  methods  of  change,- — -for  revision  in  state  convention  and 
for  specific  alterations  by  legislative  reference  to  popular  vote ;  and  it 
adds  a  third  expedient,  —  amendment  by  popular  vote  on  an  initiative  peti- 
tion. A  constitutional  convention  may  be  called  by  the  legislature  only 
with  popular  approval  on  a  referendum  vote,  but  the  question  whether 
a  convention  shall  be  called  must  be  submitted  to  the  people  at  least 
once  in  twenty  years.  Furthermore,  all  revisions  made  in  convention 
must  be  ratified  by  popular  vote.  The  legislature  may  also  initiate  an 
amendment  by  a  simple  majority  vote  of  both  Houses ;  the  proposition 
then  goes  to  the  people  at  a  general  election,  or,  if  two  thirds  of  each 
House  concur,  at  a  special  election,  where  a  majority  of  those  voting  is 

1  Similar  provisions,  however,  are  contained  in  a  large  number  of  state  constitutions.  See 
the  interesting  debate  in  the  New  York  Convention  of  1894  over  the  proposal  to  insert  a 
section  acknowledging  the  supremacy  of  the  Constitution,  laws,  and  treaties  of  the  United 
States.    Revised  Record  of  the  Constitutional  Convention  of  1S94,  Vol.  I,  pp.  1037  et  seq. 

2  Political  Science  Review,  Vol.  I,  No.  2,  pp.  213-247.  Oklahoma  has  fallen  into  what 
Professor  Gamer  regards  as  the  error  of  not  making  exact  provisions  for  the  composition 
and  procedure  of  future  constitutional  conventions.  Its  brief  mention  should  be  compared 
with  the  elaborate  details  laid  down  in  Article  XIV,  Section  2,  of  the  New  York  constitu- 
tion. However,  with  the  initiative  and  referendum  and  easy  legislative  reference  there  will 
probably  be  no  early  need  for  a  convention  in  Oklahoma.  In  fact,  the  constitution  seems  to 
anticipate  about  everything  that  may  happen  within  a  reasonable  time. 


464  AMERICAN   STATE  GOVERNMENT 

sufficient  to  ratify.  Amendments  may  also  be  initiated  by  15  per  cent 
of  the  legal  voters,  and,  when  ratified  by  a  majority  of  the  people  voting 
thereon,  they  become  a  part  of  the  fundamental  law  of  the  state. 

This  remarkable  political  document  has  been  rather  severely  criticized 
in  many  quarters  on  the  ground  that  it  is  a  radical  departure  from  Ameri- 
can principles  and  practice.  One  New  York  newspaper,  desiring  to  cast 
reflections  upon  Great  Britain  for  adopting  an  old-age  pension  system, 
declared  that  "  the  mother  of  parliaments  "  had  sunk  to  the  level  of  this 
new  western  state.  The  Oklahoma  constitution,  however,  has  not  sur- 
prised any  one  who  has  been  following  the  tendencies  of  American  state 
legislation  for  the  last  three  decades ;  it  is  by  no  means  "  a  leap  in  the 
dark  "  or  "a  shooting  of  Niagara."  The  American  people  are  not  given 
to  sailing  the  ship  of  state  by  the  stars  or  to  deducing  rules  of  law  from 
abstract  notions ;  and  every  important  clause  of  the  Oklahoma  constitu- 
tion has  been  tried  out  in  the  experience  of  one  or  more  of  the  older 
commonwealths.  The  initiative  and  referendum  came  from  Oregon  and 
find  warrant  in  the  laws  of  several  other  states;^  direct  nomination  is 
fast  working  a  revolution  in  the  American  party  system  after  a  genera- 
tion of  tentative  experiments  built  upon  earlier  voluntary  methods ;  ^  the 
departures  from  old  legal  practices,  even  in  such  important  matters  as 
the  injunction,  find  many  precedents ;  the  provisions  regarding  corpora- 
tions are  gathered  from  the  constitutions  and  statutes  of  states  as  far 
apart  as  New  York  and  Texas ;  and  the  labor  provisions  are  not  new  to 
students  of  social  economy. 

1  Political  Science  Quarterly^  Vol.  XXIII  (December,  190S),  pp,  577  et  seq. 

2  Mcrriam,  Primary  Elections  (lyoS). 


BIBLIOGRAPHICAL  NOTE 

By  William  L.   Bailey 

State  publication  and  bibliography  are  in  a  much  less  developed  condition 
than  that  of  the  national  government.  It  is  only,  however,  quite  recently  that 
the  enormous  activity  of  the  Government  Printing  Office  has  been  rendered 
entirely  useful.  Doubtless  if  is  true  that  a  large  proportion  of  state  publications 
are  not  of  general  interest  outside  of,  or,  indeed,  within  the  state ;  but  it  has  so 
often  been  pointed  out  that  as  a  result  of  our  federal  system,  one  state  desiring 
to  experiment  in  legislation  or  administration  may  profit  by  the  experiences  of 
other  states  in  the  same  matter,  that  from  the  merely  practical  point  of  view 
more  extensive  publication  and  bibliography  of  state  documents  would  be  de- 
sirable. This  localism  has  probably  been  of  some  effect  in  making  so  large  a 
mass  of  the  state  publications  consist  of  perfunctory  or  sheerly  administrative 
reports.  There  is,  however,  in  these  a  quite  surprising  wealth  of  material  valu- 
able to  not  only  political  science  but  to  the  economist,  sociologist,  and  natural 
scientist  as  well.  In  fact,  one  is  sometimes  led  to  think  that  there  might  even  be 
curtailment  along  the  line  of  publication  by  the  state  of  documents  wholly  of  an 
unpolitical  nature.  There  is  a  wide  range  of  governmental  activities  of  the  state 
governments  whose  official  records  are  not  yet  published,  and  are  thus  inacces- 
sible to  outside  interest.  State  publications  are  being  rendered  more  available 
since  1895  by  the  reinvigoration  of  the  various  state  Hbraries  through  the  or- 
ganization of  the  National  Association  of  State  Libraries,  in  affiliation  with  the 
American  Library  Association.  This  is  associated  with  the  general  reawaken- 
ing of  interest  in  state  governments,  and  the  desire  for  increased  uniformity  in 
state  action. 

A  provisional  list  of  the  official  publications  of  the  several  states  from  their  or- 
ganization has  been  published  under  the  editorial  direction  of  Mr.  R.  R.  Bowker, 
from  the  office  of  the  Publishers''  Weekly,  New  York,  1908,  under  the  title 
"  State  Publications."  It  has  appeared  in  four  parts  :  Part  I,  on  the  New  Eng- 
land States,  appearing  in  1899;  Part  II,  for  the  North  Central  States,  1902; 
Part  III,  the  Western  States  and  Territories,  1905  ;  and  Part  IV,  in  1908,  for 
the  Southern  States.  This  was  the  outcome  of  an  earlier  list  of  state  publi- 
cations, in  the  A/uerican  Caialogue,  18S4-1890,  and  continued  in  the  volume 
of  1 890-1 895.  When  "  State  Publications  "  appeared  the  bibliography  of  state 
documents  was  almost  nil.  Mr.  Bowker's  volumes  serve  simply  as  a  check  list, 
and  as  such  are  more  useful  to  the  librarian  and  bibliophile  than  to  the  student 
or  inquirer.  They  have  not  been  supplemented  since  publication,  nor  has  the 
gap  to  date  been  bridged  by  any  other  single  published  index  or  check  list. 
Since  January,  191  o,  however,  there  has  been  published  by  the  Library  of 
Congress  a  monthly  list  of  state  publications.  The  materials  appearing  in 
the  interv'al  can  only  be  traced  in  the  scarcely  satisfactory  catalogues  of  the 
various  state  libraries. 

465 


466 


AMERICAN   STATE  GOVERNMENT 


A  number  of  bibliographies  have  also  been  compiled,  covering  the  publica- 
tions of  the  several  states  in  special  fields.  The  most  notable  contribution  in 
this  field  is  Miss  Hasse's  monumental  "  Index  to  Economic  Material  in  Docu- 
ments of  the  States  of  the  United  States"  (1907).  But  Miss  Hasse  omitted 
constitutions,  laws,  legislative  journals,  and  court  reports.  Various  departments 
and  offices  of  the  national  government  have  also  undertaken  the  indexing,  and 
even  in  some  cases  the  digesting,  of  the  contents  of  state  publications  along 
specific  lines.  The  activity  of  the  Bureau  of  Labor  has  been  greatest  along  this 
line.  In  1892  there  appeared  as  the  third  special  report  of  that  office  an  ana- 
lytical abstract  and  index  of  the  labor  bureau  reports  of  each  state  down  to  that 
date.  This  has  been  brought  down  to  date  in  editions  of  1896,  1902,  being  in 
1904  supplemented  by  digests  of  all  decisions  of  the  courts  relating  thereto. 
Lists  of  publications  of  the  several  states  relative  to  health  boards,  hospitals, 
and  the  defective  classes  are  to  be  found  in  the  catalogue  of  the  Library  of  the 
Surgeon-General's  Office,  initiated  by  Dr.  J.  S.  Billings. 

There  is  no  such  source  of  information  as  the  much  derided  Congressional 
Record  furnishes  for  the  study  of  the  national  legislature.  The  legislative 
journals  of  the  various  states  are  chiefly  useful  for  analytical  study  of  legis- 
latures, containing  as  they  do  the  barest  account  of  the  formal  proceedings. 
In  some  cases  there  are  appended  to  the  journals  copies  of  the  messages  of 
the  governors.  The  debates  of  the  state  legislatures  are  in  no  case  officially 
published,  and  the  newspaper  reports  are  both  partial  and  partisan.  Committee 
proceedings  are  published  only  in  the  case  of  very  important  investigating 
committees,  such  as  the  Armstrong  Insurance  Investigating  Committee  of 
New  York. 

The  state  constitutions  have  been  quite  thoroughly  covered.  The  most  recent 
and  complete  collection  of  state  constitutions  is  found  in  F.  N.  Thorpe,  "  Fed- 
eral and  State  Constitutions,"  7  vols.  (Washington,  1909,  Government  Print- 
ing Office).  This  has  a  valuable  bibliography  of  constitutions  prefi.xed.  Another 
collection  is  that  of  B.  P.  Poore,  "Charters  and  Constitutions,"  2  vols.,  1877, 
containing  the  texts  of  most  of  the  charters  and  constitutions,  from  1600  to 
1878.  The  constitutions  of  the  states  as  existing  in  1894  are  found  in  the 
"New  York  Constitutional  Convention  Manual,"  2  vols.,  1S94.  A  digest  of 
excerpts  of  the  various  constitutions  was  prepared  by  the  Alichigan  Legis- 
lative Reference  Bureau  in  1907,  for  the  use  of  the  constitutional  convention 
of  that  year,  and  constitutes  a  valuable  source  of  knowledge  of  the  exact  con- 
stitudonal  provisions  of  the  states  upon  a  scries  of  given  topics.  A  comparative 
digest  of  state  constitutions  is  furnished  Ijy  F.  J.  Stimson,  "  Federal  and  State 
Constitutions"  (Boston,  1908),  as  also  for  the  date  1887  in  the  same  authors, 
"American  Statute  Law,"  Vol.  I,  pp.  1-114.  A  brief  historical  statement  of 
the  main  tendencies  in  the  development  of  state  constitutions  down  to  1887  is 
found  in  11.  Hitchcock,  "American  State  Constitutions."  Constitudons  of  in- 
dividual states  are  usually  prefixed  to  their  volumes  of  statutes,  as  also  con- 
tained in  their  registers  or  manuals,  and  in  the  most  of  the  states  are  separately 
published  for  distribution. 

A  valuable  bibliography  of  state  constitutions  is  prefixed  to  Thorpe's  edition 
of  the  constitutions.  It  indicates  the  fact  that  only  in  a  very  limited  number 
of  cases  have  the  debates  of  the  constitutional  conventions  been  pul)lishcd.  The 
journals,  however,  furnish  valual)ic  material  for  a  comparative  study  of  con- 
stitution-making, past  and  present.    In  few  of  the  debates  is  there  material  that 


BIBLIOGRAPHICAL  NOTE  467 

rises  above  localism  and  partisanship,  but  in  the  proceedings  of  the  New  York 
convention  of  1894,  the  Michigan  convention  of  1907,  and  a  few  others  there 
are  contained  valuable  records  of  experiences  with  political  organization  and 
institutions. 

Of  legal  treatises  upon  the  constitutional  nature  of  the  American  state, 
Cooley's  "  Constitutional  Limitations  "  still  remains  the  best  account,  though 
rendered  slightly  less  useful  by  recent  developments. 

The  regular  messages  of  the  governors  are  in  only  a  small  number  of  cases 
of  real  value.  They  usually  contain  merely  very  brief  summaries  of  the  con- 
tents of  the  reports  of  departments  and  institutions.  The  recent  suggestion  of 
Governor  Hadley,  of  Missouri,  to  dispense  with  the  traditional  message  from 
the  governor  and  in  lieu  thereof  have  the  various  officers  of  the  administration 
acquaint  the  legislature  of  the  progress  and  needs  of  their  work  is  interesting 
in  this  connection.  The  regular  messages  are  chiefly  useful  as  a  genuine  reflex 
of  the  weakness  of  the  American  state  governor  unless  he  be  a  strong  personality. 
The  art  of  control  of  the  administrative  organization  of  our  states  to  which  the 
governor  is  forced  under  our  disintegrated  systems  is  the  real  index  to  his 
position.  It  has  been  made  the  object  of  careful  study  by  Dr.  Barnett  in  his 
"  Indirect  Administration  of  Wisconsin."'  But  in  the  states  where  forceful  and 
statesmanlike  governors  have  been  a  real  power  —  La  Follette  in  Wisconsin, 
Hughes  in  New  York,  Russell  in  Massachusetts,  Folk  in  Missouri,  to  mention 
only  a  few  —  the  messages  are  frequently  real  contributions  to  the  science  of 
government.  The  special  messages  and  vetoes  are  more  frequently  indicative 
of  personality  and  of  real  impress  upon  the  governmental  process.  In  many 
cases,  too,  they  throw,  when  analyzed,  considerable  light  upon  legislative  methods 
and  conditions. 

The  messages  of  the  governors  —  regular,  special,  and  vetoes  —  have  been 
digested  by  the  New  York  State  Library  since  1901,  in  its  annual  Digest  of 
Governors'  Messages.  The  local  state  press  prints  the  regular  messages  in  ex- 
tenso.  They  are  also  frequently  found  in  the  legislative  journals.  The  edition  of 
the  New  York  governors  ("  Messages  from  the  Governors,"  11  vols,  to  1906, 
edited  by  Charles  Z.  Lincoln)  contains  footnotes  indicating  in  each  case  the  out- 
come in  legislation  of  the  recommendations  of  the  various  governors,  and  their 
vetoes.  In  a  few  cases  only  have  the  papers  of  the  governors  relating  to  par- 
dons, appointments,  and  the  like  been  published.  The  messages  and  papers  of 
many  of  the  New  York  governors  have  been  so  published,  and  B.  F.  Sham- 
baugh  has  edited  an  edition  for  the  governors  of  Iowa  to  1902  (7  vols.,  1903). 
The  executive  acts  of  the  governors  are  frequently  reported  by  the  secretaries 
of  state  in  their  regular  reports.  Pennsylvania  publishes  separately  the  veto 
messages  of  the  governors. 

The  reports  of  the  administrative  heads  and  departments  are  too  frequently 
merely  statistical,  or  administrative  in  the  narrowest  sense.  The  organization 
of  the  state  executive  and  the  functions  of  the  various  officers  differ  sufficiently 
to  make  the  task  of  indicating  what  in  general  they  severally  contain  somewhat 
difficult.  The  reports  of  the  secretaries  of  state  contain  generally  the  official 
canvass  of  state  elections ;  frequendy  a  directory  of  state  and  local  officers  (in  some 
cases  going  back  to  the  organization  of  the  state),  indicating  salaries  ;  less  seldom 
a  list  of  the  governors'  vetoes,  and  of  municipal  incorporations ;  where  they  act  as 
state  auditors,  the  usual  financial  reports  are  found.  The  contents  of  the  reports 
of  the  other  offices  are  sufficiently  indicated  by  the  name  of  the  office,  their 


468 


AMERICAN   STATE  GOVERNMENT 


functions  in  the  various  states  being  fairly  uniform.  The  reports  of  the  attorney- 
generals  frequently  contain  valuable  statements  of  the  legal  relations  of  state 
officers  and  the  scope  of  their  powers. 

Directories  of  the  state  and,  also,  the  local  governments  are  furnished  by 
the  long  list  of  manuals,  registers,  and  blue  books  published  by  the  states. 
These  are  of  varying  contents  and  value.  They  contain  primarily  gazetteer 
information,  biographies  of  legislators  and  state  and  local  officers,  and  thus 
supply  the  data  for  a  study  of  representation  in  state  legislators,  reelections  in 
the  various  offices,  and  salaries.  Very  frequently,  also,  they  contain  the  official 
canvass  of  elections  made  by  the  Secretary  of  State ;  and  the  party  platforms. 
They  impliedly  convey  that  necessary  body  of  statistical  and  general  knowledge 
of  the  state  which  will  be  of  most  use  to  the  legislator  or  state  official  in 
discharging  the  duties  of  his  office.  The  rules  of  the  legislative  bodies,  the  lists 
of  committees  and  information  of  this  sort  are  frequently  published  in  a  small 
manual  for  pocket  use  by  the  legislators. 

Defective  publicity  in  relation  to  state  legislators  through  the  lack  of  such  a 
document  as  the  Coigressional  Record  has  brought  into  existence  in  at  least 
one  state,  namely,  Illinois,  the  Legislative  Voters'  League.  The  bulletins  of  this 
organization  are  keen,  critical  accounts  of  conditions  and  methods  in  legislatures 
which  are  valid  for  other  states  than  the  one  in  which  they  originate. 

In  the  field  of  comparative  state  legislation  much  has  been  done  by  the 
activities  and  publications  of  the  various  legislative  reference  libraries.  Their 
publications  have  been  chiefly  along  the  line  of  comparative  studies  of  consti- 
tutional provisions  and  legislation  on  topics  which  had  appeared  as  problems 
locally.  The  various  bulletins  of  the  Wisconsin  Library  are  illustrative  of 
this  class.  The  New  York  State  Library  Bulletins  of  Legislation  (1891  to  date) 
are  the  most  valuable  of  such  guides  to  comparative  legislation  by  the  states. 
These  appear  annually,  and  are  a  complete  topical  digest  of  all  such  legislation. 
The  brief  digests  of  the  laws  are  supplemented  by  "  Reviews  of  Legislation," 
in  the  same  volumes,  written  by  experts  each  in  his  special  line. 

The  annual  presidential  addresses  of  the  American  Bar  Association  contain 
a  more  or  less  complete  review  of  important  additions  to  the  body  of  state  statute 
law.  Committees  of  the  American  and  the  various  State  Bar  Associations  are 
from  time  to  time  detailed  to  investigate  specific  phases  of  legislation  with  a 
need  to  greater  uniformity  or  to  action  within  a  given  state.  Only  in  a  limited 
number  of  cases,  however,  have  the  reports  of  these  committees  been  printed 
in  full,  but  summarized  results  of  their  findings,  frequendy  of  much  value,  can 
be  found  in  the  regular  vcjlumcs  of  proceedings. 

Jones's  "  Index  to  Legal  Periodicals  "  (2  vols,  to  1899)  serves  as  an  index  to 
not  only  the  proceedings  of  the  bar  associations,  but  also  to  the  several  law 
journals,  which  frequently  contain  articles  on  specific  phases  of  legislation  or 
on  the  courts. 

F.  J.  Stimson's  "American  Statute  Law  "  (2  vols.,  1887)  is  a  comparative 
digest  of  the  then  existing  body  of  slate  legislation,  but  has  not  been  brought 
down  to  date. 

Various  departments  of  the  national  government  —  the  Agricultural  Depart- 
ment, the  Bureau  of  Labor,  the  Commissioner  of  Ixlucation  and  the  Public  Roads 
( )ffice  —  have  publishedsummaries  of  the  legislation  of  the  states  on  special  fields. 
Indexes  to  such  publications  arc  found  in  tiic  bulletins  of  public  documents 
issued  by  the  Superintendent  of  Documents. 


BIBLIOGRAPHICAL  NOTE  469 

For  secondary  sources  the  volumes  of  the  American  State  Series  take  first 
rank  as  studies  of  both  the  law  and  the  practice  of  every  main  aspect  of  state 
government.  They  are  the  product  of  the  newer  viewpoint  in  the  study  of 
governments  which  does  not  fail  to  realize  the  divergence  of  the  actual  from 
the  legal,  or  the  importance  of  bearing  in  mind  the  economic  and  social 
environment  of  political  institutions.  These  volumes  cover  not  only  the  state 
governments  but  also  the  national  and  local.  They  consist  of  "  The  American 
Constitutional  System,"  by  W.  W.  Willoughby ;  "  City  Government  in  the 
United  States,"'  by  F.  J.  Goodnow ;  "Party  Organization  and  Machinery," 
by  Jesse  Macy ;  "  The  American  Executive  and  Executive  Methods,"  by 
J.  H.  Finley;  "American  Legislatures  and  Legislative  Methods,"  by  Paul  S. 
Reinsch ;  "Local  Government  in  Counties,  Townships,  and  Villages,"  by 
J.  A.   Fairlie ;  and  "  The  American  Judiciary,"  by  S.  E.   Baldwin. 

"  The  American  Commonwealth,"  by  James  Bryce  (new  and  revised  edition, 
1910),  pp.  41 1-5S4,  still  remains  the  best  of  general  accounts  of  state  govern- 
ment. Less  valuable  summary  accounts  are  contained  in  R.  L.  Ashley,  "  The 
American  Federal  State  "(New  York.  1902),  chaps,  xviii  and  xix :  A.  B.  Hart, 
"Actual  Government"  (1903):  J.  Fiske,  "Civil  Government  in  the  United 
States"  (1 89 1). 

Several  studies  of  individual  states,  with  historical  introductions,  are  to  be 
found  in  the  many  editions  of  school  textbooks  on  civics  which  have  appeared. 
These  often  furnish  a  convenient  and  reliable  source  of  reference,  but  are  based 
quite  exclusively  on  constitutions.  The  American  Commonwealth  Series  is 
illustrative  of  this  class  of  material.  There  is  a  partial  list  of  such  texts  appended 
to  Fairlie's  "  Local  Government."  The  Columbia  University  Studies  on  the  cen- 
tralizing movement  in  several  of  the  states  and  on  certain  specific  phases  are 
of  monographic  completeness. 

On  several  administrative  problems  of  the  state  governments  the  depart- 
ments or  offices  of  the  national  government  concerned  make  valuable  reports. 
The  activities  of  the  Commissioner  of  Education,  the  office  of  Public  Roads, 
and  the  United  States  Bureau  of  Labor  have  already  been  mentioned.  The 
United  States  Civil  Service  Commission  has  since  1 898  chronicled  the  progress 
in  the  states  and  local  governments  of  civil  service  reform.  The  Fifteenth 
Report  (1 897-1 898)  contains  a  historical  statement  and  bibliography. 

On  other  phases  relating  to  charities  and  corrections  such  organizations  as 
the  National  Conference  of  Charities  and  Corrections,  the  various  state  con- 
ferences, and  the  National  Prison  Association  issue  reports  containing  material 
which  records  state  legislation  and  administrative  action.  So  for  the  highway 
problem,  the  many  organizations  and  conferences,  such  as  the  International 
Good  Roads  Congress,  the  National  Road  Parliament,  National  Good  Roads 
Convention,  National  League  for  Good  Roads  and  state  conventions;  for  edu- 
cation, the  National  Educational  Association,  Department  of  Superintendence ; 
for  Civil  Service  Reform,  the  National  Civil  Service  Reform  League(  1 874  todate). 
The  trade  associations  and  organizations,  such  as  the  American  Live  Stock  As- 
sociation, American  Pharmaceutical  Association,  and  the  like,  have  active  com- 
mittees on  legislation,  whose  reports  to  their  respective  bodies  are  frequently 
useful  for  tracing  out  legislative  projects  along  certain  lines.  Governmental 
action  must  always  be  understood  as  not  springing  full-blown  from  the  head 
of  the  sovereign  state,  but  as  simply  the  last  stage  of  a  process  whose  origins 
are  in  the  many  organized  interests  of  economic  and  social  life. 


470  AMERICAN   STATE  GOVERNMENT 

The  reports  of  the  proceedings  of  the  various  interstate  departmental  officers' 
associations  contain  valuable  comparative  information  as  to  departmental  prob- 
lems and  methods.  The  Journal  of  Proceedings  of  the  International  Associa- 
tion of  Factory  Inspectors  of  America  has  been  published  since  1900.  The 
National  Association  of  Railway  Commissioner^,  whose  membership  includes 
state  and  territorial  railroad  commissioners  and  members  of  the  United  States 
Interstate  Commerce  Commission,  has  published  its  proceedings  since  1889. 
The  first  conference  of  the  chief  school  officers  of  the  several  states  and  terri- 
tories with  the  United  States  Bureau  of  Education  was  held  in  Washington,  D.C., 
February,  1908.  Various  organizations  interested  in  taxation  meet  and  publish 
their  proceedings,  for  example,  the  Bulletin  of  the  International  Tax  Association 
(Columbus,  Ohio,  1907);  the  Addresses  and  Proceedings  of  the  Annual  Confer- 
ences of  the  International  Association  on  State  and  Local  Taxation;  the  Pro- 
ceedings of  the  National  Conference  on  Taxation,  1901  to  date.  The  Highway 
Engineers  and  Commissioners  meet  in  conventions,  as  indicated  above,  and  the 
discussions  of  comparative  methods  and  progress  are  published. 


INDEX 


Adams,  H.  C,  318-325 

Adams,  T.  S.,  293-301 

Administration.    See  Commission 

Alabama,  proiiibition  in,  344 

Alger,  G.  W.,  129-139 

Allen,  Philip  L.,  364 

Antisaloon  League,  355-356 

Appeal,  failure  of,  150-157;    Lummus 

on  failure  of,  150-157 
Apportionment,     legislative,     in    New 

York,  120-126;  in  Connecticut,  127- 

129 
Arkansas,  prohibition  in,  348 
Australian  ballot.    See  Elections 

Baldwin,  Judge  S.  E.,  116-120 

Ballot,  Australian,  364-372;  the  short, 

372-383 
Beard,  C.  A.,  450 
"Blue"  laws,  26 
Bogart,  Ernest  L.,  56 
Boss,  the  state,  432-433 
Bourne,  Senator,  84-108 
Bradford,  G.,  on  the  governor,  17-19 
Bribery  laws.  Folk  on,  428-434 
Bryce,  James,  61-62 

California,  prohibition  in,  352 

Carpenter,  Judge,  140-150 

Childs,  R.  S.,  372-383 

Claims  against  the  state,  168-172 

Colorado,  prohibition  in,  351 

Commissions,  222-239  ;  causes  of,  223  ; 
classification  and  distribution  of,  224  ; 
duties  of,  224-23 1  ;  future  of,  238-239 ; 
Public  Service  Commissions  of  New 
York,  240-252  ;  Railway  Commission 
of  Wisconsin,  253-262;  relation  to 
governor  and  legislature,  231-233; 
relation  to  courts,  233-236 ;  relation 
to  local  governments,  236-238 

Connecticut,  legislative  apportionment 
in,  127-129;   prohibition  in,  352 

Conservation,  of  forests  by  the  states, 
284-285;  in  New  York  state,  271- 
2S4 ;  of  natural  resources  as  state 
property,  265-270  ;  opinion  of  Maine 


Supreme  Court  on,  265-270;  Hud- 
son County  Water  Company  vs.  Mc- 
Carter,  262-265 

Constabulary,  the  Pennsylvania,  217- 
221 

Constitutional  conventions,  435-464; 
in  Michigan,  1907,  438-442  ;  in  New 
York,  1894,  435-437  ;  in  Oklahoma, 

450 

Constitutions  of  states,  general  tenden- 
cies in,  441-449 

Corrupt-practices  act  of  Oregon,  103- 
ro6 

Courts,  and  legislatures,  55-56 ;  of  last 
resort,  140-1 50  ;  failure  of  the  appeal 
system,  150-157  ;  the  appeal  in  crim- 
inal cases,  192-198 ;  juvenile,  199- 
207  ;  relation  to  commissions,  233— 
236 

Criminal  law,  W.  H.  Taft  on,  173-181 ; 
J.  W.  Garner  on,  181-199;  delays  in 
securing  a  jury,  186-187;  weakness 
of  jury  system  in,  189-192;  the  ap- 
peal system  in,  192-198;  parole  law 
of  Illinois,  207-217 ;  the  juvenile 
court,  199-207  ;   state  police,  217-221 

Curtis,  G.  W.,  328-331 

Dealey,  J.  Q.,  443-449 
Delaware,  prohibition  in,  347 
"Dispensary,"  in  South  Carolina,  347 

Education,  and  local  patriotism,  328- 
331  ;  government  of  state  universi- 
ties, 331-336;  higher,  and  working- 
men,  338-339 

Elections,  Australian  ballot  in,  364- 
372;  short  ballot  in,  372-383;  sena- 
torial, 404-414 

Enforcement  of  law,  26-40 

Executive.    See  Governor 

Fairlie,  J.  A.,  301-31S,  438 

Finance,  procedure  on,  in  legislatures, 
56-61  ;  separation  of  state  and  local 
revenues,  293-301;  state  supervision, 
301-310;  railway  taxation,  310 


471 


472 


AMERICAN  STATE  GOVERNMENT 


Fleischmann,  S.,  168-172 

Florida,  prohibition  in,  347 

Folk,  J.  W.,  as  governor,  10-14;  on  the 

saloon  and  the  law,  338-342 
Forestry.    See  Conservation 

Garner,  J.  W.,  on  criminal  law,  181-199 

Garvin,  Governor,  432 

Georgia,  prohibition  in,  343-344 

Governor,  the,  W.  E.  Russell  on  the 
power  of,  i-io;  weakness  of,  17-19; 
Folk  as,  10-14,  26-27  ;  executive  usur- 
pation by,  14-16;  Hughes  as,  14-16, 
17;  and  legislatures,  17-19;  G.  Brad- 
ford on,  17-19;  pardoning  power 
of,  19-25 ;  enforcement  of  law  by, 
26-27  ;  law  enforcement  in  Kentucky 
by,  28-40 ;    relation  to  commissions, 

231-233 

Hamlin,  J.  PI.,  435 
Haynes,  G.  H.,  404-414 
Henderson,  Judge,  19-25 
Holmes,  Justice,  262-265 
Hughes,  as   governor,   14-16,    17;    on 
conservation  in  New  York,  271-284 

Idaho,  prohibition  in,  351 

Iglehart,  F.  C,  342,  357 

Illinois,  Legislative  Voters'  League  of, 
74;  legislature  of,  74-79;  parole  law 
of,  207-217  ;  prohibition  in,  350 

Indiana,  legislature  of,  44-46;  prohibi- 
tion in,  349 

Initiative  and  referendum,  in  Oregon, 
88-93;  in  general,  108-116 

Insurance,  state  supervision  of,  286-292 

Iowa,  prohibition  in,  350 

Judiciary,    politics    and,    158-167.     See 

Courts 
Jury.    See  Criminal  law 
Juvenile  court,  199-207 

Kansas,  prohibition  in,  348-349 
Kentucky,  law  enforcement  in,  28-40; 
prohibition  in,  345 

La  Follettc,  Governor  R.  M.,  mes.sage 
on  lobbying,  81-84  !  tin  railway  regu- 
lation, 252-262;  on  railway  taxation, 
310-318;  on  state  treasury,  325-327  ; 
on  nominations  by  direct  vote,  383- 
394  ;  on  majority  nominations,  394- 
398 


Law,  the,  and  industrial  inequality, 
129-139 

Legislature,  the,  S.  P.  Orth  on,  41-56; 
qualifications  of  members  of,  42-48 ; 
product  of,  49-52 ;  restrictions  on, 
55-56;  and  courts,  55-56;  financial 
procedure  in,  56-61  ;  Bryce  on,  61- 
62;  organization  of,  in  Illinois,  74-79; 
and  governors,  17-19;  methods  and 
conditions  of,  74-79  ;  reference  de- 
partment of,  63-74  (its  purpose,  63- 
67  ;  scope  and  methods,  67-73  '■> 
sources  of  material,  73-74) ;  extended 
sphere  of  action  of,  1 16-120;  mes- 
sages to,  see¥o\k,  Hughes,  La  Fol- 
lette,  McLean,  Russell;  Legislative 
Voters'  League  of  Illinois,  74 ;  appor- 
tionment in  New  York,  120-126; 
apportionment  in  Connecticut,  127- 
129;  commissions  and,  231-233;  dead- 
locks in  senatorial  elections,  421-428 

Lobby,  the,  W.  E.  Russell  on,  79-So ; 
R.  M.  La  Follette  on.  Si -84 

Local  government,  relation  of  commis- 
sions to,  236-238 

Louisiana,  prohibition  in,  348 

Lummus,  H.  T.,  150-157 

Lush,  C.  K.,  399-404 

McCarthy,  Charles,  63-74 

Mack,  Julian  \V.,  199-207 

McLean,  Governor,  127-129 

Maine,  Supreme  Court  on  conservation, 

265-270;  prohibition  in,  352 
Maryland,  prohibition  in,  347 
Massachusetts,    governor's    power    in, 

3-7  ;  prohibition  in,  352 
Michigan,  prohibition  in,  350 
Minnesota,  prohibition  in,  350 
Mississipi)i,  prohibition  in,  345 
Missouri,  law  enforcement  in,  26-27  > 

prohibition  in,  348  ;  also  see  Folk 
Montana,  prohibition  in,  351 

Nebraska,  prohibition  in,  351 
Nevada,  prohiljition  in,  351 
New  Hampshire,  prohibition  in,  352 
New  Jersey,  prohibition  in,  352 
New  York,  conservation  in,  271-284; 
constitutional  conventions,  435-437  ; 
legislative    apportionment,    120-126; 
public-service  commissions,  242-252 
Nominations,  by  direct  vole,  383-394  ; 
by  majority  vote,  394-398 ;    amend- 
ment to  primary  law,  399-404  ;  "  sec- 
ond-choice arrangement,"  399-404 


INDEX 


473 


North  Carolina,  prohibition  in,  345 
North  Dakota,  prohibition  in,  351 

Ohio,  legislature  of,  43-44  ;  prohibition 

in,  349 

Oklahoma,  prohibition  in,  344 ;  consti- 
tution of,  450-464 

Oregon,  popular  government  in,  84-108; 
prohibition  in,  352 

Orth,  S.  P.,  41-56 

Osborne,  T.  M.,  240-252 

Pardoning  power.    See  Governor 
Parole  law  of  Illinois,  207-217 
Pennsylvania,    constabulary    of,    217- 

221  ;  prohibition  in,  353 
Primary,  the  direct,  Senator  Bourne  on, 
93-103;  La  Follette  on,  383,  394; 
"second-choice  arrangement"  in, 
399-404 ;  use  of,  by  the  people, 
414-421 
Prohibition,  the  saloon  and  the  law, 
338-342  ;  the  nation's  antidrink  cru- 
sade, 342-356;  another  year  of  de- 
feat, 357-363  ;  cause  of  movement, 
353;  Antisaloon  League,  355-356; 
in  Europe,  357  ;  in  the  South,  357- 
358;  in  the  Middle  West,  358-360; 
in  New  York  and  New  England,  360  ; 
federal  legislation  on,  361  ;  economic 
argument  for,  362-363 

Railroads,  regulation  of,  252-262,  lo-i  i; 

taxation  of,  310-318;   tendencies  in 

taxation  of,  318-325 
Recall,    the,    in    Oregon,   106-107 ;    in 

general,  11 4-1 16 
Rhode  Island,  prohibition  in,  352 
Root,  Elihu,  120-126 


Russell,  Governor  W.  E.,  on  the  power 
of  the  governor,  i-io;  message  on 
lobbying,  79-80 

Schaffner,  M.  H.,  108-116 

Schurman,  J.  G.,  331-338 

Senators,  popular  election  of,  404-414; 

deadlocks    in    elections  of,  421-428 
Separation  of  state  and  local  revenues, 

293-301 
Smith,  \V.  R.,  158-167 
Snively,  E.  A.,  207-217 
South  Carolina,  the  "  dispensary  "  in,  347 
South  Dakota,  prohibition  in,  351 
Supervision  by  the  state  of  local  finance, 

301-310 

Taft,  W.  H.,  173 

Taxation,  supervision  of  local,  301-310  ; 

of  railways,  310-318;  tendencies  in, 

318-325;     separation    of    revenues, 

293-301 
Tennessee,  prohibition  in,  345 
Texas,    pardoning    power    in,    19-25 ; 

prohibition  in,  348 
Treasury,   the,   protection  of,  325-327 

Vermont,  the  legislature  of,  42-43 
Virginia,  prohibition  in,  346 

Washington,  prohibition  in,  352 
White,  F.  H.,  on  commissions,  222-239 
W'hite,  W.  A.,  on  Folk,  10-14 
Willson,  Governor  Augustus  E.,  28-40 
Wisconsin,  Legislative  Reference  De- 
partment of,  63-74 ;   prohibition  in, 

35° 
Wolfe,  S.  H.,  286-292 

Wyoming,  prohibition  in,  351 


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